Bombay High Court
ANJUMAN ITTEHADUL ISLAM AJARAversusTHE STATE OF MAHARASHTRA THR THE DEPT. OF EDUCATION (PRIMARY) AND ORS
- Disposal
- Dismissed
Holding
The order granting permission to the rival school is valid; the distance criterion is not a condition precedent and the lack of a personal hearing does not render the order illegal.
Summary
The Anjuman Ittehadul Islam, a society running a 100% aided school, challenged a order dated 17‑06‑2025 that permitted a rival school to start an additional 5th‑standard division, alleging that the order violated a 2019 Government Resolution which bars such permission within a 1 km neighbourhood and that the society was denied a hearing. The petitioners argued that the distance criterion was a condition precedent and that the Competent Authority acted arbitrarily and against natural‑justice principles. The Court examined the 2019 and 2024 Government Resolutions, the Right of Children to Free and Compulsory Education Act, 2009 and its Rules, and noted that the distance requirement is merely one of several factors to be considered, not a sacrosanct condition. It held that the authority had duly taken reports from the Extension Officer and the Public Works Department and that a personal hearing was not mandatory in such administrative decisions. Consequently, the order granting permission to the rival school was upheld and the writ petition was dismissed.
Issues considered
- Whether the geographical distance criterion in the Government Resolution dated 19‑09‑2019 is a mandatory condition precedent for granting permission to start an additional 5th‑standard division.
- Whether the failure to afford a personal hearing to the petitioner violates the principles of natural justice.
- Whether the order granting permission to the rival school is arbitrary, illegal, or otherwise vitiated.
Legislation cited
Subjects
- Right to Education
- Government Resolution
- Geographical distance criterion
- Natural justice
- Additional school division
- Writ petition
- Maharashtra education law
Judgment
WP.9609.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9609 OF 2025
Anjuman Ittehadul Islam .. Petitioner
Versus
The State of Maharashtra and Ors. .. Respondents
....................
Mr. Prajakt M. Arjunwadkar a/w. Mr. Ritesh R. Raut, Advocates for
Petitioner.
Mr. Siddheshwar Kalel, for Respondent – State.
......…...........
CORAM : MILIND N. JADHAV &
NANDESH S. DESHPANDE, JJ.
RESERVED ON : JUNE 30, 2026.
PRONOUNCED ON : AUGUST 06, 2026.
P.C.:
1. Heard Mr. Arjunwadkar, learned Advocate for Petitioner
and Mr. Kalel, learned AGP for Respondent - State.
2. Petitioner has filed present Writ Petition challenging the
order dated 17.06.2025 passed by Respondent No.2 - Chief Executive
Officer, Zilla Parishad, Kolhapur granting permission in favour of
Respondent No.5 for commencement of an additional division of 5 th
standard for the academic year 2025 - 2026.
3. The brief facts of the case are that Petitioner is a Society
registered under the Societies Registration Act, 1860 as well as the
Maharashtra Public Trusts Act, 1950. Petitioner - Society runs Dr.
Zakir Hussain Anglo Urdu High School and Junior College, Ajara
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which was established in the year 1969 and receives grant-in-aid since
in the year 1972. Petitioner institution is a 100% aided school and is
running classes from 5th standard to 12th standard.
4. It is the case of the Petitioner that Respondent No.1 issued
Government Resolution (For short 'GR') dated 19.09.2019 appointing
Respondent No.2 as the Competent Authority for granting permission
in respect of starting additional divisions of 5 th standard in primary
schools and 8th standard in higher primary schools under the Right of
Children to Free and Compulsory Education Act, 2009 (for short the
'RTE Act') readwith the Rules of 2010. It is the further case of
Petitioner that under the said GR, permission for additional division
could not have been granted where an existing school education in
offering education in the concerned standard was already available
within the prescribed neighbourhood distance, so as to prevent
attrition of students from the said school, thereby affecting the running
of the shool.
5. Petitioner further states that Respondent No.1 thereafter
issued GR dated 15.03.2024 in continuation and modification of the
earlier policy again conferring powers on Respondent No.2 to grant
permissions for starting 8th standard divisions to schools which were
already running from 1st to 7th standard, subject to the conditions
prescribed therein.
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6. It is the case of Petitioner that Respondent No.5 submitted a
proposal on 06.02.2025 seeking permission for starting an additional
division of 5th standard. Petitioner immediately raised an objection on
15.04.2025 before the Respondent No.3 contending that the proposal
was hit by the geographical distance criteria, since the Petitioner’s
school was already running 5th standard class and situated within the
prohibited neighbourhood distance. Further a similar proposal of
Respondent No.5 had earlier been rejected on the ground of
geographical distance and therefore, a fresh proposal on the same
basis was not maintainable.
7. Despite the objection raised by Petitioner, Respondent No.3
called for a report through the Extension Officer, Ajara. The Extension
Officer submitted his report recommending the proposal by observing
that Petitioner school was situated beyond 1 km, ignoring the
objection raised by the Petitioner and the actual geographical
position / distance between the schools.
8. Respondent No.4 thereafter forwarded the proposal further,
though on an earlier occasion Respondent No.4 himself noted that
there existed a school within 1 km and that grant of permission would
not be correct. Report from the Public Works Department (PWD) was
later obtained, which was contradictory and confusing, as it mentioned
both short distance of 0.850 km and long distance of 1.2 km, though
the Act and the GR contemplate only the prescribed neighbourhood
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distance and not any such concept of short and long distance.
9. However Respondent No.2, by order dated 17.06.2025
granted permission to Respondent No.5 for commencement of 5 th
standard class for the academic year 2025-2026 without granting any
hearing to Petitioner and without considering the objections raised by
the Petitioner or the earlier contrary material on record. Petitioner has
therefore challenged the impugned order as being arbitrary, illegal,
and in violation of the principles of natural justice.
10. We have heard the learned Advocates for the respective
Advocates and learned AGP at the bar and perused the record of the
case with their able assistance. Submissions made by the Advocates
have received due consideration of the Court.
11. Learned Advocate for Petitioner submits that the impugned
order is liable to be quashed and set aside since the same has been
passed in breach of the prescribed policy and without considering the
objection of the Petitioner. It is submitted that the Petitioner’s school is
already functioning within the neighbourhood, that the proposal of
Respondent No.5 is expressly barred under the GR dated 19.09.2019
and that the Competent Authority failed to act judicially. It is further
submitted that the order is vitiated by non-application of mind and
violation of natural justice as no opportunity of hearing was granted to
Petitioner despite a specific objection.
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12. Respondent No.2 has opposed the Petition by filing reply
and contended that the impugned order dated 17.06.2025 is legal,
valid and supported by reasons. It is contended that the Petitioner has
misread the GRs dated 19.09.2019 and 15.03.2024 and that the
distance clause is not applicable in the manner as suggested by the
Petitioner. He would further contends that the proposal was properly
considered, the relevant reports were obtained and the impugned
order was passed after due application of mind under the RTE Act,
and the applicable Rules. It is further contended that the PWD report
is not a conclusive document exhibiting distance criteria and that the
real consideration is the strength and convenience of students.
13. The controversy before the Court, as raised by the Petitioner
is in a narrow compass. Petitioner is running a school and is aggrieved
by the grant of permission by the Competent Authority to Respondent
No.5 - a rival school to commence classes from the 5 th standard
onwards on the principal ground that the rival school is located within
a distance of 1 km from the Petitioner's school. Therefore, reliance is
placed by the Petitioner on the GR dated 19.09.2019, by virtue of
which Respondent No.2 has been appointed as the Competent
Authority for taking decisions on issuing permissions in respect of the
commencement of additional divisions of 5th standard in primary
schools as well as 8th standard for higher primary schools.
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14. Petitioner’s case is that it is an old established school and
junior college and therefore if the impugned permission is allowed to
be sustained, it will have a drastic effect by causing attrition among
the students who are presently studying in the Petitioner’s school.
Petitioner fears that students will leave the Petitioner's school and join
the rival school, thereby reducing the number of students in the
Petitioner's school. The sole primary reason argued by the Petitioner is
on account of the distance of the rival school is within 1 km and before
grant of permission to the rival school to commence an additional
division of the 5th standard for the academic year 2025–2026,
Petitioner was not afforded an opportunity of hearing.
15. Both the aforesaid reasons, in our opinion, do not merit any
consideration whatsoever. The stream of education cannot be
considered to be a monopoly of any particular Educational Institution.
Though it is true that the GR dated 19.09.2019 prescribes the distance
criteria, the same cannot be held as sacrosanct or a condition
precedent for the grant of permission to start or commence additional
classes of the 5th standard in a school.
16. The distance criteria is merely one of the conditions
mentioned in the said GR which needs to be adhered to, keeping in
mind various other parameters. It is not the principal factor for
consideration as is argued by the Petitioner before us.
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17. Reference has been made to the National Education Policy
(NEP) 2020, which came into effect after the passing of the earlier GR.
Pursuant thereto and in order to enhance the quality of education and
empowerment of primary schools run by local bodies, the State
Government issued a further GR dated 15.03.2024.
18. The terms and conditions contained in the previous GR
dated 19.09.2019 have also been considered. Both the GRs are
appended to the Petition. We have gone through the said GRs
carefully. What we find is that the geographical distance criteria
vehemently argued by the Petitioner can never be considered to be the
sole determinative factor for grant of permission to a rival school for
starting additional classes, primarily because of large-scale
urbanisation in the present times. The GRs prima facie set out various
parameters required to be considered. The reasons for issuing the said
GRs indicate that pursuant to substantial litigation in that direction,
the Government realized that when permissions are granted to rival
schools to begin additional classes, existing schools may face attrition
in student strength, thereby leading their enrolment and rendering
their teachers who are employed by those opponent schools as surplus.
Therefore the liability and responsibility of the Government to
accommodate surplus teachers on the financial side arises.
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19. Further even though the student strength may not increase,
but due to such attrition the overall strength of teachers increases and
most of them are rendered surplus. The said GRs are based upon the
RTE Act, whereby it is deemed necessary to start classes from the 5 th
standard onwards to accommodate students who have already studied
up to the 4th standard in the same school and similarly in respect of
those students who have studied up to the 7 th standard in the same
school. Keeping this perspective in mind, the GR of 2019 was passed.
One page No.28, Exhibit 'B', the said GR has been appended. The said
GR lays down 7 terms and conditions to be fulfilled when the
Competent Authority grants permission for starting and commencing
additional classes for the 5th standard and the 8th standard.
20. In the instant case, it is prima facie seen that the said
conditions stand fulfilled. An appropriate report was called for by the
Competent Authority prior to granting permission from the Extension
Officer and the PWD. Though a lost of thrust was laid by the Petitioner
on the the issue of geographical distance of 1 km, we are unable to
accept the argument advanced by Mr. Arjunwadkar that the said
distance should be held to be sacrosanct or a condition precedent
before grant of permission by the Competent Authority.
21. In the present case, there is a dichotomy expressed by a
neutral PWD Office Report which clarifies that the shorter distance
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between the Petitioner and Respondent No.5 school is 850 meters
whereas the longer distance is 1.2 kms. This finding is objected by the
Petitioner. We do not find merit in the objection raised by the
Petitioner primarily because education cannot be forced upon
students. In today's competitive environment, if sufficient students are
available, then there is no reason as to why permission for starting
additional classes should not be allowed.
22. The idea and object behind prescribing a geographical
distance criteria is to ensure that the student population is distributed
in such a manner that the students get an opportunity to access
education. The stream of education has become more liberal and
inclusive because of the passing of the RTE Act and the Rules made
thereunder.
23. In our opinion, the distance criteria contained in the GR
dated 19.09.2019 cannot be held to be a condition precedent. The
facts of each case should govern the applicability of the geographical
distance criterion before the Competent Authority.
24. Insofar as the contention regarding the grant of a personal
hearing to Petitioner is concerned, we are in complete disagreement
with the submission made by Mr. Arjunwadkar that the Petitioner
ought to have been heard. If such an argument were to be accepted,
every rival school would begin raising objections and seek a personal
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hearing thereby rendering the cause of education susceptible to
avoidable delays and opportunistic litigation. That is not the intention
behind the issuance of both the aforesaid GRs by the State
Government. Both the GRs in fact take into account the demographic
distribution of students who have studied from the 1 st to the 7th
standard in schools where permission for commencing additional
classes is sought. Even otherwise, under Clause 3(R)(i) of the GR
dated 19.09.2019, it is provided that in densely populated urban and
semi-urban areas, the State Government or the local authority shall
establish more than one nearby school, keeping in view the population
of children in the age group of 6 to 14 years in the said area, in
accordance with the RTE Act and the Rules framed thereunder.
25. Further, it is seen that the requirement of a school building
can never be judged by the geographical distance and measured
accordingly. In our opinion, even assuming that the shorter distance
between the Petitioner and Respondent No.5's school is 850 meters.,
in the facts and circumstances of the present case, the said will have to
be considered as adequate enough to satisfy the condition of
geographical distance of 1 km because the stream of education cannot
be compromised merely on the basis of the distance limits prescribed
in the GRs.
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26. The terms and conditions given in the GRs which are
invoked in the present Petition are in the nature of guidelines. It is
further seen that the GR dated 15.03.2024 virtually changes and
dilutes the contents of the GR dated 19.09.2019 in order to make
education more diverse, accessible and inclusive for all cross sections
of Society.
27. In that view of the matter, we are of the firm opinion that
distance cannot be the sole criteria to decide whether the Competent
Authority has committed any error or otherwise. In our opinion, the
orders passed by the Competent Authority do not suffer from any legal
infirmity whatsoever and deserve to be upheld.
28. In view of the aforesaid observations and findings, we are
unable to accept the submissions advanced on behalf of the Petitioner
and are therefore constrained to dismiss the Writ Petition.
29. Petition is dismissed.
[ NANDESH S. DESHPANDE, J. ] [ MILIND N. JADHAV, J. ]
Ajay
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2026.08.06
13:13:47 +0530
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