SATYAMEV JAYATE SHIKSHAN PRASARAK MANDAL, NAGPUR & ANR. vs. THE STATE OF MAHARASHTRA THROUGH THE SECRETARY, SCHOOL EDU. & SPORTS DEPT. & ORS.

2019:BHC-AS:14716-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8028 OF 2014
Shree Krishna Education Society, Through
Chairman/Secretary ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent
WITH
WRIT PETITION NO. 8143 OF 2014
Tuljamata Shikshan Sanstha, Nakshi, Through
Chairman/Secretary ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent
WITH
WRIT PETITION NO. 5951 OF 2015
Ekatmata High School & anr. ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent
WITH
WRIT PETITION NO. 8030 OF 2014
Kai Thagubai Shankar Deore Seva Bhavi
Sanstha, Saundane, Through Chairman/Secretary
& ors. ...Petitioners
V/s.
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The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent

WITH
WRIT PETITION NO. 8029 OF 2014
Jijamata Education Society, Kakandi,
Through Chairman/Secretary ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondents

WITH
WRIT PETITION NO. 8026 OF 2014
Indian Education Society;s Jawaharlal Nehru
Vidyalay, Sheva, Through Head Master ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent
WITH
WRIT PETITION NO. 8027 OF 2014
Satyamev Jayate Shikshan Prasarak Mandal,
Nagpur, Through Chairman/Secretary ...Petitioner
V/s.
The State of Maharashtra, Through Secretary,
School Education Department & anr. ...Respondent

WITH
WRIT PETITION NO. 3226 OF 2013
Shree Krishna Education Society & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
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WITH
WRIT PETITION NO. 3227 OF 2013
Kai Thagubai Shankar Deore Sevabhavi
Sanstha, Soundane & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3228 OF 2013
Siddharth Shikshan Prasarak Mandal & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3229 OF 2013
Shivaji Shikshan Prasarak Mandal & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3231 OF 2013
Jijamata Education Society & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3232 OF 2013
Satyamev Jayate Shikshan Prasarak Mandal
& anr. ...Petitioners
V/s.
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The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3233 OF 2013
Tuljamata Shikshan Sanstha & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
WITH
WRIT PETITION NO. 3234 OF 2013
Jawaharlal Nehru Port Vidyalaya
Sheva & anr. ...Petitioners
V/s.
The State of Maharashtra & ors. ...Respondents
Shri Narendra V. Bandiwadekar and Vinayak Kumbhar i/b.Sagar Mane for the
petitioners in WP Nos. 8028/14, 8026/14, 8027/14, 8029/14,
8030/14,8143/14 and wp 5951/15.
Mr. Prashant Bhavake for petitioners in wp nos.3226/2013 to 3229/2013 and
wp 3231/13 to 3234/13.
Mr.A.I. Patel, Addl.GP for State in wp nos.3226/2013 to 3229/2013 and wp
3231/13 to 3234/13.
Mr.Deelip Patil-Bankar, Special Counsel for State a/w. Smt.R.M.Shinde, AGP
for State in wp 8028/14, 8026/14, 8027/14, 8029/14, 8030/14, 8143/14,
5951/15.
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CORAM: B.R.GAVAI &
DAMA SESHADRI NAIDU,JJ
th
JUDGMENT RESERVED ON: 25 MARCH 2019
rd
JUDGMENT PRONOUNCED ON: 03 May 2019.
JUDGMENT (PER DAMA SESHADRI NAIDU,J)
Introduction:
An unaided school applies for grant-in-aid. The authorities subject it to
scrutiny and find it eligible. Despite the in-principle approval, the school does
not get the grant immediately, for the disbursement depends on fund
availability. The grant is discretionary. As the school waits, the Government
changes the eligibility criteria: the school must have followed the rule of
reservation. Then, it insists that the school should have implemented the
reservation policy in recruiting its staff—even before it has applied for the
grant-in-aid and it rejects the school’s claim for the grant.
2. Aggrieved, the School—besides a few other similarly placed schools—
challenges the government refusal. So the issues we should resolve are these:
(A) Does the G.R. No. म म श म अ २ ०० ९ /( ५ ९९ / ० ९ )/ म म श श - १ , dated 15th
November 2011, apply to the petitioner schools?
(B) If it does, should it apply prospectively or retrospectively? In other
words, should the schools comply with the reservation policy by the date
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they have applied for the grant-in-aid or only from the date the grant is
given?
Facts:
3. The Petitioner is a registered Educational Institution, running a
Government recognized Secondary School—Vidyaniketan Vidyalaya. The first
nd
respondent is the Secretary, School Education Department, and the 2
respondent the Director of Education. With validly secured permissions, the
petitioner started an “unaided” Secondary School, from the Academic Year
(AY) 2000-2001. Over time, the petitioner school has established up to Std. X.
Of the unaided private schools , some are ‘plainly’ unaided and some
‘permanently’ unaided. The petitioner’s school belongs to the former category.
th
4. Through Government Resolution (“GR”), 11 October 2000, the
first respondent prescribed the norms to sanction grant-in-aid to the
Secondary Schools in the State of Maharashtra. As per those norms, an
unaided school will have no grant for the first four years; later it gets grant-in-
aid in stages: starting from the fifth year, annually it will have 20%, 40%, 60%,
80%, and in the 9th year 100%. The Government, however, revised the norms
th
through another GR, 17 February 2004.
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5. The norms mandate that if an unaided school applies for the grant-in-
aid, first the District Level Committee will examine the request and submit its
report to the State Level Committee. Then, the State Level Committee
examines and recommends to the first respondent, which will notify the names
of the schools eligible for the grant-in-aid, acting on that recommendation.
6. So, on the petitioner’s application for grant-in-aid, the District Level
Committee assessed the school for the AY 2009-10. The school secured about
95 marks. The report forwarded to it, the State Level Committee has also
independently considered the petitioner’s request along with others and
concluded that the school is eligible. Thus, the State Level Committee,
th
through its report, dated 11 January 2012, submitted to the Respondent No.1
that 11 schools should be declared eligible for the grant-in-aid. The
petitioners, in this context, assert that their assessment was completed save the
formal grant of the aid.
7. About the same time, the permanently unaided schools wanted the
Government to delete the tag “permanent” from their categorization, so they
too can claim aid. The Government , then, through a GR, dated 20th July
2009, deleted the word “permanent” from the permission it had granted to
those “permanent-unaided schools.” This deletion did not cover English
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Medium Schools, though. Three more years later, those schools, too, would be
eligible for grant-in-aid—that is, from A.Y. 2012-13.
8. As the record reveals, in November 2011, the first respondent issued a
GR, laying down the norms for assessing the erstwhile permanently unaided
schools.
9. In the wake of 2011 GR, the 2nd respondent issued a Circular, dated
22nd March 2013, directing the Regional Directors and Education Officers
(Secondary) of the Zilla Parishads concerned to reassess the unaided schools,
including the petitioners’. Aggrieved, the Petitioner filed WP No. 3233 of
2013. It challenged , among other things, “the legality and validity” of clause
nd
[d] of para 2 of 2011 GR, besides challenging the 2 respondent’s
Circular issued in March 2013. Eight others, too, filed similar writ petitions.
This Court, through an ad-interim order, dated 1st April 2013, “restrained the
respondents from reassessing the school.” The order still subsists.
10. Then, a Division Bench of this Court, pending the writ petition, in
October 2013, also directed the State Government to consider the petitioner’s
claim for the grant-in-aid “without applying norms” fixed by the November
2011 GR. So the first respondent considered the cases of the 11 schools and,
through the GR, dated 7th February 2014, declared them eligible subject to
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the conditions mentioned in that GR. But the petitioner was “partly
aggrieved”; it has filed this writ petition.
The Other Writ Petitions:
11. As the record reveals, in all other writ petitions, too, the pleas are
identical, barring minor variations. So we need not labour setting out those
facts.
Petitioners’:
12. Shri Narendra Bandiwadekar and Shri Vinayak Kumbhar, the
learned Counsel for the petitioners, have contended that the impugned GR in
a broad sweep classifies all schools under "Urban Area", but they are in "Rural
Area”. Both the learned counsel frontally attack the second condition in the
impugned GR: the schools must have filled up the posts reserved for backward
classes in the prescribed manner. If a school has not filled up the posts as
mandated, that school will not be eligible for the grant-in-aid. They even
attack the first condition, which declares that the schools ought to have
complied with all “the norms and conditions” mentioned in that GR.
13. Assailing these two conditions, the learned counsel contend that the
evaluation was under the 2004 GR and 2005 Circular, as was made clear in
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the second respondent’s report, dated 11th January 2012. So neither condition,
according to them, sustains the legal scrutiny. In other words, they assail these
two conditions as opposed to, or at least beyond, what has been mandated
under 2004 GR and 2005 Circular.
14. The learned counsel’s challenge to the third condition in the
impugned GR further projects the petitioners’ objections over the other two
conditions. According to them, the third condition requires these schools to
comply with the statutory mandate under the Right of Children to Free and
Compulsory Education Act, 2009 (“RTE Act”). They maintain that as that Act
came into force in August 2009, it could not be retrospectively applied to the
petitioners’ schools. For they stand governed by the 2004 GR and 2005
Circular. Besides that, they also contend, in the alternative, that the RTE Act
applies to schools imparting elementary education as defined under Section 2
[f] of that Act. But the petitioners’ schools do run classes only from Std. Vlll to
X.
15. The petitioners’ counsel also attack the fifth condition, which, it
seems, disentitles the schools to the arrears “till the funds become available.” In
that context, they argue that the delay in the petitioners’ getting the grant-in-
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aid cannot be attributed to them. It was, they assert, because of the
departmental delay. Even this Court, according to them, passed the order on
th
11 October 2013, directing the first respondent to take immediate decision on
the petitioners’ proposal.
Respondents’:
16. Shri Deelip Patil Bankar, the learned Special Counsel for the State,
has taken us through the Private Schools (Condition of Service) Regulation
Act, 1977, the eponymous Rules 1982, and the Maharashtra Act No. VIII of
2003. In the backdrop of those legislations, he contends that the petitioner
schools have a statutory mandate to fulfil: to reserve 52% of the total posts of
teaching and non-teaching staff for the persons belonging to the Scheduled
Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category, and Other Backward Classes. And it is a
constitutional mandate to be fulfilled at that, under “Articles 14, 15 (4) and 16
(4) of the Constitution of India.
17. Then, in tune with the Government’s counter affidavit, the learned
Special Counsel has elaborated on the Government Policy—as spelt out
through its numerous Resolutions—on the pattern of reservations and the
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governmental discretion in granting the aid to the private schools following the
reservation. But he underlines that even if a school fulfils the statutory
mandate, still the Government’s granting the aid is “subject to availability of
funds”. And no school, he asserts, can claim the grant with retrospective effect.
18. The learned Special Counsel frontally attacks, what he calls, the
petitioners’ unfounded claim, first, for t h e grant-in-aid without their
adhering to the reservation policy and, second, their claim for the grant
retroactively. He has also contested the petitioners’ claim that the Grs, the
Government has brought about after the petitioners’ applying for the grant-in-
aid would not apply to them. He has denied that those GRs exclusively apply
to the “permanent unaided” institutions. In the end, he urges us to dismiss the
writ petitions for the petitioners have failed , among other things, to implement
the Government’s reservation policy.
19. Heard Shri Narendra Bandiwadekar and Shri Vinayak Kumbhar, the
learned counsel for the petitioners; Shri Deelip Patil-Bankar, the learned
Special Counsel for the State, along with Mrs. R. M. Shinde, the learned AGP
for the State.
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The Dispute in Perspective:
20. The petitioners are private unaided schools. In 2009 or thereabout,
these schools applied for grant-in-aid. Initially, the District Level Committee,
and later the State Level Committee have recommended their applications. But
before the Government could sanction the grant, it had a policy change. Under
that changed policy, these institutions must have fulfilled the reservation policy
before they applied for the grant-in-aid.
21. But the petitioners maintain that the changed policy applies
prospectively. In the alternative, they also contend that by the time the
Government introduced the new policy, the authorities concerned approved
the petitioners' applications. So the ministerial delay in providing the grant
could not defeat their rights. They also contend that the changed policy was
meant to be applied exclusively to the permanently unaided schools, which
had, in the course of time, the prefix "permanently" removed—at their
request.
The Questions:
22. So we need to examine these issues: (1) does the new policy of
reservation apply inclusively to both the unaided and permanently unaided
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schools or exclusively to the permanently unaided schools alone? (2) Is the new
policy of reservation prospective or retrospective? (3) Does the Government
have the discretion to deny aid even to the schools that complied with the
statutory mandate? (4) Can a school claim the grant-in-aid retrospectively, that
is, from the date of its application?
The Constitutional & Statutory Scheme:
I. Constitutional Concession:
23. The Constitution provides for reservation both in appointments
and in promotions in the “government service”. To be explicit, Article 16 (4)
empowers the State to provide for the reservation “of appointments or posts in
favour of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State.” Article 16 (4A)
enables the State to provide reservation in matters of promotion to any group
or groups of posts in the services under the state in favour of the Scheduled
Caste and Scheduled Tribes. Article 335 emphasises that the claims of the
members of the Scheduled Caste and Scheduled Tribes shall be considered
consistent with the maintenance of efficiency of administration in the making
of appointment of service and posts in connection with “ the affairs of the
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union or of a state.”
24. And yet the reservations under Article 16(4) of the Constitution are
no exception to the fundamental right of equal opportunity in government
employment. Reservation in employment is in itself an equality measure
implicit in Article 16(1)—made explicit through Article 16(4) of the
Constitution. Its efficacy undisputed and judicially upheld, for example, in
1 2
State of Kerala v. N. M. Thomas , ABSK Sangh v. Union of India , Indra
3
Sawhney v. Union of India , we must examine who should discharge this
positive State obligation.
II. Statutory Scheme:
(i) Primary Legislation:
(a) Reservation Act 2001:
25. This State has enacted “The Maharashtra State Public Services
Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes
(Vimukta Jatis), Nomadic Tribes, Special Backward Category and other
Backward Classes Act, 2001” (“the Reservation Act”). Maharashtra is the first
state to have enacted such a law. It provides for the reservation of vacancies in
1
AIR 1976 SC 490
2
AIR 1981 SC 298
3 AIR 1993 SC 477
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“public services and posts” in favour of the persons belonging to the Scheduled
Castes, Scheduled Tribes, and so on. Section 2 (c) of this Act defines
“establishment” to mean any office of the Government, of local authority, or of
a statutory authority constituted under any Act of the State Legislature for the
time being in force, or a University or a Company, a Corporation, or a Co-
operative Society in which share capital is held by the Government or “any

percentage of reservations.
(b) MEPS Act, 1977:
26. The Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 (“MPES Act”) regulates the recruitment and
conditions of service of employees in “certain private schools in the State”. It
aims at providing the employees of these schools “security and stability of
service to enable them to discharge their duties towards the pupils and their
guardians in particular, and the institution and the society in general,
effectively and efficiently.” Laudable is the objective. Indeed, “regulate” is a
capacious expression, having a malleable meaning. As held in Jiyajeerao
4
Cotton Mills Ltd. v. M.P. Electricity Board , it has different shades of meaning
4 1989 Supp. (2) SCC 52
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and “must take its colour from the context in which it is used having regard to
the purpose and object of the relevant provisions.” Jiyajeerao Cotton Mills also
asserts that while interpreting the expression, the Court must necessarily keep
in view “the object to be achieved and the mischief sought to be remedied.”
27. The Act, indisputably, applies to all private schools which are
recognised: aided or unaided. The recognition refers to that accorded by the
Director of Education, the Divisional Board, or the State Board. In other
words, a private school, as defined under Section 2 (20), is a recognized school
established or administered by a Management, other than the Government or
local authority. An employee under the Act, as defined under Section 2(7), is
any member of the teaching and non-teaching staff of a recognized school and
includes shikshan sevak, too. Section 3 of the Act emphatically declares that
the Act applies to all private schools in the State of Maharashtra, whether
receiving any grant-in-aid from the State Government or not.
28. Section 16 of the Act deals with delegated legislation; rather, through
this provision, the Legislature delegates its legislative power in defined spheres
to the Executive. The State Government may make rules “for carrying out the
purposes of this Act.” And the purpose of this Act is, as we have already noted,
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“security and stability of service to enable [the employees] to discharge their
duties towards the pupils and their guardians in particular, and the institution
and the society in general, effectively and efficiently.” In Subsection (2) of
Section 16 these general powers have been illustratively enumerated: (a)
qualifications for recruitment of employees; (b) scales of pay and allowances;
(c) post-retirement and other benefits; (d) the other conditions of service of
such employees including leave, superannuation, reemployment, and
promotion; (e) the duties and Code of Conduct; (f) enquiry procedure; and (g)
any other matter which is required to be or may be prescribed. The delegate
has the power to legislate retrospectively, too. But that retrospectivity cannot
prejudicially “affect the interests of any person to whom such rule may be
applicable.”
(ii) Secondary or Subordinate Legislation:
MEPS Rules, 1978:
29. So came the MEPS Rules. Rule 9 is material for our purpose.
Subrule (7) has, through a recent amendment, mandated that the school
management shall reserve 52% of the total teaching and non-teaching posts for
the persons belonging to the Scheduled Castes, Scheduled Tribes, and so on.
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Rules 8, 9, and 10 lay down the procedure for filling up the reserved vacancies.
In fact, Subrule (7) was modified on 8th July 2008; earlier it was 34%, which
now stands increased to 52%. Thus the authorities maintain that unless the
petitioners comply with Rule 9(7), their entitlement to grant-in-aid does not
arise. It is, according to them, not only the statutory mandate but also
constitutional obligation.
30. Through Rule 9 of the MEPS Rules, the Government applied
reservations to the private educational institutions, as contained in the
Reservation Act, 2001. In fact, this Act applies , among other things, to
Government aided institutions, as evident from Section 2 (c) of that Act. Yet,
through a subordinate piece of legislation, the State has brought the unaided
private institutions, too, under the Reservation Act. It has , in other words,
applied a constitutional mandate horizontally, through its delegated legislative
power.
31. But we hasten to add that the vires of the MEPS Rules have not been
questioned here. So we will steer clear of any constitutional controversy and
examine only Rule 9 (7), which reads:
The Management shall reserve 52 per cent. of the total number of
posts of the teaching and non-teaching staff for the persons
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belonging to the Schedule Castes, Schedule Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes as follows, namely:
. . .

(iii) Administrative Instructions or Government Resolutions:
(a) Government Resolution (GR), dated 25th October 1990:
th
32. In terms of government letter, dated 4 September 1990, the
Deputy Director of Education, Nagpur Region, permitted the petitioner
institution to start a secondary school in Marathi medium, from the academic
year 1990-91. It was unaided.
(b) GR, dated 11th October 2000:
33. Until this Government Resolution was issued, the sanction of grant-
in-aid to recognised unaided secondary schools was governed by GR, dated
th
10 February 1989. Through the GR of 2000, the Government revised the
norms for sanctioning the grant-in-aid. Under these revised norms, a
recognised unaided Marathi medium school gets no grant in the first four
years; in the fifth year it gets 20% of salary and non-salary expenditure; in the
next four years the grant annually increases by 20%. Thus, in the ninth year,
the school receives 100% grant-in-aid. The assessment for grant-in-aid takes
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place under 10 heads, each head carrying specified marks and the total coming
to 100. To be eligible to get the grant-in-aid, a school must secure 90 marks
out of 100, with certain exceptions to the schools in tribal areas.
34. Of course, the GR has a couple of disclaimers: the actual payment of
grant-in-aid to the schools will depend on the availability of funds; no school
can claim the grant as of right. And the higher secondary schools have slightly
modified norms.
(c) GR, dated 17th February 2004:
35. This GR reveals that under the norms fixed in the GR, dated
11.10.2000, about 588 schools were granted permission. They were all
established before 1997-1998. This evaluation or assessment took place in
2001-2002. Including one in the Tribal Area, 49 schools became eligible.
36. In September 2003, the Government decided to change the norms
fixed earlier in October 2000. But the Government, first, declared 180 schools
eligible to receive the grant-in-aid. This was under the norms fixed in 2000.
These schools will, as the Government declares, receive the grant as per the
fund availability. Indeed, the selected schools are required to “comply with the
norms regarding S.S.C. Examination result.”
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37. The 2004 GR, we must note, wanted the new norms applied
prospectively for the evaluations from 2003-04. It fixed a two-tier evaluation:
first by the District Committee and, later, by the State Committee. These
Committees seem to have been constituted under this Court’s directions in
Writ Petition No. 1773 of 2000.
38. Thus, under the revised norms, the State Committee will scrutinize
the District Committee’s report. Thereafter, the Director, Secondary and
Higher Secondary Education, (M.S.), as the Chairman of the Committee,
would submit a list of the eligible schools to the State Government.
39. The State shall declare the list of the Schools that have become
eligible for a grant-in-aid; after that declaration, the ineligible Schools will be
intimated in one month, through the Education Officer [Secondary], about the
marks they secured.
40. The GR also clarifies that the recognized unaided secondary schools
established before 1997-1998 declared ineligible for the grant-in-aid and “the
secondary schools which were granted permission on unaided basis till 1999-
2000 should be evaluated/ assessed by these Committees as per the prescribed
norms till May 2004.”
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41. Granted, here too, the GR clarifies that the eligible schools cannot
claim grant as of right; it lies, on the contrary, within the Government’s
discretion. Similarly, notwithstanding the approval in a particular Academic
Year, the Government can change “the formula for grant-in-aid taking into
consideration the availability of the financial resources and the needs of the
State and their priority.”
(d) GR, dated 3rd January 2005:
42. In May 2004, the authorities evaluated a few schools under the 2004
revised norms. Then, the Government received many complaints. So it
tweaked those norms. Then, it directed the authorities to reevaluate the
schools declared ineligible in May 2004 evaluation. The Government further
wanted the authorities to evaluate the unaided schools established in 2000-01.
The District Committee must complete the evaluation by January 2005, and
the State Committee by February 2005.
(e) GR, dated 15th November 2011:
43. In this GR, the Government, first, acknowledges that the “formula
for grant-in-aid to Primary and Secondary Schools in the State is being
changed from time to time.” Second, it takes note of the representations from
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the institutions running private schools on a “permanent unaided’’ basis. Then,
it considers many representations from these institutions to remove the word
“permanent” from the orders of permission granted to those schools. Finally,
the GR refers to an earlier GR, dated 20th July 2009, that decided to delete
that word from the permissions granted to the Primary and Secondary Schools,
excluding English Medium Schools, however.
44. Under the 2009 GR, the Government seemed to have appointed a
Committee to fix revised norms for evaluating the unaided schools which have
shed the “permanent” tag from their category. The Committee’s suggestions
accepted, the Government has allowed the authorities to evaluate these schools
for grant-in-aid under the new norms. It was from 2012-13. The schools
comply with “the minimum eligible norms fixed from time to time by the
Government.” Of immense importance is the condition that “while making the
application for evaluation/ assessment, [the school concerned must have
complied with] the reservation policy for appointment of the employees in the
schools,” excluding Minority Schools, though.
(f) GR, dated 11th December 2012:
45. This GR considered the request of 24 secondary schools, which
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had already been evaluated and approved for the grant-in-aid. But the
Government, through its letter, dated 28th September 2012, as the GR
notes, enquired whether the schools concerned had fulfilled the “backlog of
reservations”. In that context, the GR noted that the proposals for the grant
from these schools were received by December 2010. It also acknowledges
that these schools were evaluated “as per the norms in the GR No.
SSG/1003/[516/03]/SE1, dated 17,2.2004 and No. NGSS/1804/[656/04]
SE1, dated 3.1.2005.”
46. Indeed, the GR did observe that the GR under which these 24
schools had been evaluated mentioned nothing about the backlog of
reservation. So the Directorate reckoned that the reservation norm should
not be applied to these schools. And the Directorate further accepted that
the norms as contained in GR, dated 15th November 2011, should not be
applied, specifically, to eleven schools. For these schools have met all other
norms, including those fixed under the RTE Act, save the requirement of
reservation, which did not apply when evaluation took place.
(g) GR, dated 22nd March 2013:
47. But despite the Directorate’s disinclination to apply the
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reservation norm retrospectively to schools already evaluated before 2011,
the Government insisted on its compliance. So in this GR, the authorities
require the secondary schools in their respective regions or districts to be
reassessed or evaluated as per the revised norms; that is, as per GR, dated
15th November 2011. Therefore, this GR insists on these schools’
complying with the job-reservation norm—even after their earlier
evaluation and in-principle approval for grant.
(H) GR, dated 7 February 2014:
48. This GR refers to the recommendation made by the Director of
Education (Secondary and Higher Secondary) in December 2011. Of the 24
secondary schools the Director of Education recommended to be eligible for a
grant, the Government declared 11 secondary schools as having complied with
the norms of evaluation and emerging eligible to receive the grant-in-aid.
49. But the GR reiterates that these schools must comply with all the
norms and conditions in the GR, dated 17 February 2004. To be explicit,
though these 11 schools were declared eligible for evaluation, it is mandatory
for the schools to fill up the reserved posts for backward classes as per the
prescribed ratio. True, it also reiterates the Government's discretion in
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granting the aid and the schools' disentitlement for the aid retrospectively.
(I) GR, dated 19 May 2016:
50. This Government Resolution concerns a few of the 11 schools. And
it substantially repeats the conditions as set out in the previous GR.
The Reliefs Sought:
51. In W.P. No.8143 of 2014, the petitioner wants (1) the Secretary,
School Education Department, to replace “Urban Area” with “Rural Area” in
communication, dated 7 February 2014; (2) the same authority to declare that
four posts of peon are eligible for grant-in-aid; (3) the Court to set aside
condition numbers 2, 3, 4 and 5 in the impugned order, dated 7 February
2014; (4) the Secretary, School Education Department, to release the grant-in-
aid for the academic year 2010-11, as per the Director of Education’s
recommendations; and (5) the same authority to release the grant-in-aid,
including the arrears, from the academic year 2010-11 onwards.
52. In all other Writ petitions, too, the petitioners sought identical relief.
What are the Conditions 2, 3, 4, and 5 in GR 2011?
Condition (2): Even though the school concerned was declared eligible
in evaluation, it is mandatory for that school to have filled up the vacancies
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applying the rule of reservation. If the school has not filled up the posts
accordingly, it is not eligible for grant-in-aid.
Condition (3): It is mandatory for all the schools to comply with the
norms under the RTE Act.
Condition (4): Even though the school is declared eligible for grant-in-
aid, the actual grant lies in the State government’s discretion and is subject to
the availability of the funds.
Condition (5): The grant has no retrospectivity; it is given prospectively
from the day the funds are available.
What is the Bone of Contention?
53. Indeed, the bone of contention is the petitioner-schools’ obligation
to comply with the reservation norm before it could claim any grant-in-aid.
The schools’ claim to adhere to the reservation policy prospectively—from the
date they get the grant—stands judicially rejected. Or at least, the Respondents
assert thus . So we must necessarily examine the scope of the State’s imposing
reservations on unaided schools. We may pose unto ourselves the question
whether this issue stands settled by Pramati.
Constitutional Compulsions & the Problem of Private Players:
Horizontality and Verticality:
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54. For a citizen, a constitution is an empowering and liberating
document; for the State it is a limiting one . True, empowerment is not
tantamount to conferment. It acknowledges the citizen’s inalienable rights and
elaborates on them , thus to render itself a verifiable source of those powers,
which otherwise may remain amorphous. Then, with the rights remaining
unarticulated and unenumerated, the classical concept of State sovereignty
may run riot, trampling on the very powers of the citizens.
55. On the State as a political entity, the Constitution imposes
constraints. It draws the line—the Lakshman Rekha—the State cannot cross.
Each organ of the State has the duties to perform, burdens to discharge,
conventions to honour, and objectives to attain. That is verticality. But as the
State’s activities multiply, it has given room to private players to be its partners
in progress. It allowed those players to discharge governmental functions
—“the state action” or the public duties. Then, the constitutional compulsions
affect these private players, too. That is horizontality.
56. The Constitution's protections of individual liberties and its
5
requirement for equal protection apply, according to Erwin Chemerinsky ,
only to the government. Private conduct generally does not have to comply
th
5
Constitutional Law: Principles and Policies, Wolers Kluwer, 5 Ed.,
p. 507
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with the Constitution. This is often referred to as the “state action” doctrine,
although “state action” is something of a misnomer. The Constitution applies
to government at all levels—federal, state, and local—and to the actions of
government officers at all levels. It, however, generally does not, the learned
6
author observes, apply to private entities or actors. In their Constitutional
7
Law, Geoffrey R. Stone et al., have discussed the “state-action issue” in a
comparative constitutional perspective. They have observed that many of the
world’s constitutional systems have confronted the state-action problem.
Outside the United States, the problem is usually described as one involving
the horizontal effect of constitutional norms, such as procedural fairness, free
expression, and nondiscrimination. Then, the learned authors pose unto
themselves a question: in the absence of applicable statutes, to what extent do
such norms apply to the actions of non-governmental actors? Other
constitutional systems, they note, deal with the problem in two ways: (a)
direct-horizontal way and (b) indirect-horizontal way.
57. More commonly, constitutional courts give, as Geoffrey R. Stone et
al emphasise, constitutional norms “indirect” horizontal effect. This approach
6 Id.
7 Wolters Kluwer, 8th Ed., Pg 1556, Kindle Ed.
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is said to have been enormously influenced by, if not originated from, the
8
German Constitutional Court’s decision in Erich Lüth . Under this approach,
constitutional norms do not apply of their own force to a nongovernmental
actor’s actions, but they must be considered when the courts apply non-
constitutional statutory or common law rules to those actions . Constitutional
norms, that is, must shape the interpretation of statutes and the common law.
58. This concept finds expanded by Mark Tushnet, in his curiously
titled book: Weak Courts, Strong Rights: Judicial Review and Social Welfare
9
Rights in Comparative Constitutional Law. According to him, the state action
issue is merely a question—though a difficult one—of what the substantive
10
requirements of a nation’s constitutions are. In the Chapter “Structure of
11
Judicial Review, Horizontal Effect, and Social Welfare Rights” , Mark Tushnet
first acknowledges that the “state action” doctrine is one of the most difficult in
the US constitutional law, and has been almost as difficult in other
constitutional systems.
59. Constitutional systems around the world have confronted the state
action problem, the terminology differing though. Under the doctrine known
8
7 BverfGE 198 (1958)
9
Prinston University Press, Prinston and Oxford, Ed.2008
10
Id. 162
11 Id., 196
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as “indirect horizontal effect”, courts charged with construing and developing
non-constitutional law must consider constitutional values, and constitutional
courts will oversee them to determine whether they have been sufficiently
respectful of those values.
The Indian Scenario:
60. Like its counterparts in the United States, Canada, South Africa, and
Germany, the Indian Supreme Court, notes the learned author and columnist
12
Gautam Bhatia, has had occasions to engage with horizontality, and to craft
various kinds of remedies in such cases. According to him, the horizontality is
achieved through different devices: (1) Functional Test: through this device,
the private player is assimilated under the rubric of “other authorities”, as
mentioned in Article 12 of the Constitution. (2) Positive-Rights Enforcement:
the Courts have brought out the fundamental rights from the classical
confines; they have transformed them from being negative restraints to being
positive obligations. (3) Indirect Horizontality: In this method, as discussed
earlier, the fundamental or “basic fundamental rights radiate outwards beyond
the Constitution, in a manner that affects private law and private
12
Horizontality Under the Indian Constitution: A Schema, a blog
post, dt.24.05.2015,
https://indconlawphil.wordpress.com/2015/05/24/horizontality-
under-the-indian-constitution-a-schema/
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13
adjudication.” Finally, the learned author mentions (4) Direct Horizontality:
under this method, the Fundamental Rights are directly enforced against the
non-state players. In fact, the Constitution has a couple of provisions under
Chapter III that apply across the board, to all citizens: Articles 15(2), 17, and
23.
Is There any Interplay between Articles 15 and 16?
61. Let us accept the fact that under Article 16 there is no corresponding,
or even analogous, provision to Article 15 (2). Combining the ratio of TMA
14
Pai Foundation v State of Karnataka and the Constitutional Assembly
debates on the expression “shop” in Article 15 (2), the Supreme Court in
15
Indian Medical Association v. Union of India has held that an educational
institution is a shop, where services can be secured for a fee. Besides that, the

explicit: it has Clause (5) engrafted to Article 15.
62. So the State cannot bring in Article 15 or the decisions under that
13
Id.
14 (2002) 8 SCC 481
15 (2011) 7 SCC 179
16 (2012) 6 SCC 102
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Article to support its action under Article 16. That action must sustain itself on
what has been mandated under Article 16 and, by extension, under
enactments that owe their origin to that Article—for example the Reservation
Act, 2001.
The Constitutional Mandate:
63. Often articulated is the judicial assertion that Article 14 is the genus
and Articles 15 and 16 are the species. Both these articles particularise two
instances of equality embodied in Article 14. Clause (1) of Article 15 prohibits
“the State” from discriminating “against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.” On the other hand,
Clause (2) of the same Article prohibits citizens as well as the States from
practicing discrimination in providing access to shops, hotels, and all places of
public entertainment, of public resort, wells, tanks, roads, and so on. Evidently,
clause (1) is state-centric, whereas clause (2) is not. That is, one operates
vertically and the other horizontally.
64. Clause (3) empowers the state to make special provisions for
protecting women and children. Clause (4) enables the State to make special
provisions for protecting the interests of the backward classes of citizens.
65. Indeed, the expression "shop" has come to be judicially interpreted
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to include an education institution. And this interpretation, besides the
constitutional engrafting of Articles 21-A and 15(5), has opened new vistas,
enabling the State to enforce the constitutional mandate horizontally. So let us
examine how the law—the constitutional law at that—has come to affect a
child’s right to education.
The Imbroglio in Educational Establishments:
66. What Unni Krishnan J.P. v. State of A.P., has judicially asserted—a
child’s right to free and compulsory primary education—has become a
legislative reality through Articles 21-A and 51-A (k) of the Constitution. This
has been brought about through the Constitution (86th Amendment) Act,
2002. But it was not brought into force until 1st April 2010. In the meanwhile,
the Government’s efforts to throw open educational institutions—even the
unaided ones—to the underprivileged and backward class children have been
met with resistance. In the face of unenforced Article 21-A, the State faced
constitutional constraints too; this has led to a few adverse decisions from the
courts.
(a) Judicial Interpretation:
67. In TMA Pai Foundation, a Constitution Bench of 11-Judges of the
Supreme Court initially held that reservations in private colleges were
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unconstitutional. Of the eleven questions TMA Pia Foundation answered, one
is about the rights of non-minorities to establish and administer educational
institutions under Articles 19(1)(g) and 21. In answering that question in the
affirmative, the Court has held that setting up an educational institution would
be an “occupation” under Article 19(1)(g).
68. This decision was followed up by a five-judge Bench decision in
17
Islamic Academy of Education v State of Karnataka ; it has clarified the case-
holding of TMA Pai Foundation. Finally came PA Inamdar v State of
18
Maharashtra . In that decision, a seven-Judge Bench has held that ‘the
imposition of quota seats in unaided professional institutions’ seriously
encroaches on the private professional educational institutions’ right and
autonomy. The Court has held that this violates the private institutions’ ‘right
to occupation’ protected under Article 19(1)(g) of the Constitution. And
reservations, according to the Court, were not a reasonable restriction within
the meaning of Article 19(6).
The Legislative Response:
93rd Constitutional Amendment:
17 (2005) 6 SCC 537
18 (2002) 8 SCC 481
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69. Parliament responded with the Ninety-third Constitutional
Amendment, adding Clause (5) to Article 15. Among other things, this C lause
constitutionally enables the State to mandate reservations in private
educational institutions; it effectively overrides PA Inamdar. True, this clause
does not apply to minority educational institutions. This Ninety-third
Amendment has engendered the Central Educational Institutions (Reservation
in Admission) Act 2006.
70. Both the Constitution (Ninety-third) Amendment Act and Central
Educational Institutions (Reservation in Admission) Act 2006 were challenged
19
in Ashoka Kumar Thakur v. Union of India. But as noted by Prof. M. P.
20
Singh, no private aided or unaided educational institution or anyone on their
behalf approached the Court questioning the Amendment. For the Act applies
only to Central Government institutions, though the Amendment applies both
to public and private—whether aided or unaided—educational institutions. So
four Judges out of the five upheld both the Constitutional Amendment and
the Act; nevertheless, they left one issue open: whether the part of clause (5)
that enabled reservations in private educational institutions was
19
(2008) 6 SCC 1
20
Ashoka Thar v. Union of India: A Divided Verdict on an
Undivided SociaJustice Measure, I NUJS L. Rev. (2008) p.193
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constitutionally valid. But one learned Judge has clearly held that such a
provision violated the basic structure of the Constitution.
RTE Act:

86th Constitutional Amendment, was brought into effect on 1st April 2010.
Under this Amendment came into existence the RTE Act. Section 12 of the
RTE Act requires that all aided and unaided schools reserve 25% of their
admissions for students from economically weaker and socially disadvantaged
backgrounds.

72. Unaided Private Schools challenged the RTE Act, for Article 21-A
explicitly casts no positive constitutional obligation on the private players in

Court, per majority, has upheld the constitutionality of section 12 of the RTE

institution centric”; the provision of education to all children is a priority, even
though it might burden private schools. The court reiterated the importance of
Article 21-A and found that the burden on private schools to satisfy the quota
was irrelevant, given the importance of the right to education.
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The Second Attempt:

petitioners contended that Articles 15(5) and 21A of the constitution and the
RTE Act violated the basic structure of the constitution and the right to
equality by distinguishing between aided and unaided minority schools. The
Constitutional Bench of the Supreme Court once again has upheld the
constitutionality of the RTE Act. The Court has held that as the objectives of
Articles 15(5) and 21A were to provide equal opportunities for students from
weaker sections of the society, they would not violate the private schools’ right
under Article 19(1)(g). It has, in that process, held that “none of the rights
under Article 14, 19(1)(g), and 21 of the Constitution have been abrogated by
Clause (5) of Article 15 of the Constitution.” So it has overruled the view taken
by Bhandari J in Ashoka Kumar Thakur.
The Conflation & the Confusion:
21 (2014) 8 SCC 1
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In Employment:
74. The 86th Constitutional Amendment, the 93rd Constitutional
Amendment, the Central Educational Institutions (Reservation in Admission)
Act 2006, and the RTE Act all concern education. And they transformed the
right to education—at least up to primary level—into a fundamental right.
This right, however, emanates either from Article 15 (5), or Article 21-A, or
both. So do the decisions: Ashoka Kumar Thakur, Society for Unaided Private

student to admission into schools. None of these—the Constitutional
Amendments, the Acts, or the judicial decisions—touch upon, much less
affect, another constitutional facet: the right to employment and, in its wake,
the right to reservation in service.
In Private Employment:
75. The Oxford Handbook of Indian Constitution, in the Chapter
22
“Private Employment” , notes that political parties have long advocated
22 Pg.731, Kindle Edition
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reservations in private employment. But there is currently no constitutional
provision that allows for it, no Supreme Court judgment on the subject, and
no government Bill pending. Proponents see this as the logical culmination of
India’s extensive reservation policy. They argue that, with the economic
reforms of the 1990s, it is the private sector that has seen the most significant
growth in jobs, while government jobs (for which there are reservations) has
shrunk. They also point to studies suggesting that private sector employers
discriminate based on caste while selecting employees. To preempt this move,
some industry groups have accepted forms of ‘voluntary affirmative action’,
and some companies have showcased schemes to provide special training to
candidates from disadvantaged groups to help them in private employment.
76. Therefore, enforcement of Article 16 horizontally, that is in the
purely private sphere, needs a constitutional device such as Article 15(5);
otherwise, State action in that regard may fall foul of the constitutional
mandate, as it exists now.
The Decisional Dilemma:
Bormalnath Shikshan Sanstha:
77. GR, dated 15th November 2011, allows the schools opened on a
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permanent no-grant basis to get the grant-in-aid. Clause (2) of the G.R
compels the schools to satisfy the policy of reservation. A few such “permanent
no-grant” schools applied for the grant, met the eligibility criteria but found
wanting in their implementing the reservations in employment. The grant
denied, they approached this Court.
78. In Bormalnath Shikshan Sanstha v. State of Maharashtra, though the
petitioners challenged the validity of the GR, during the arguments they gave
up that challenge. Instead, they seem to have confined their relief against the
official rejection, on another ground: “the backlog of reserved category.” They
maintained that there was no backlog of reserved vacancies in the schools. In
th
that context, a Division Bench of this Court in its judgment, dt.17 September
2913, has observed that the petitioners could have approached the authorities
and demonstrated that they had no backlog. Instead, they rushed to the Court.
79. Indeed, the petitioners have also contended that a school cannot be
held ineligible after the Committee has favourably assessed it. In other words,
to get the grant-in-aid, the compliance with the policy of reservation is no
criterion. To repel this contention, the Court has observed that the “second
petitioner school was permitted to be opened on a permanent no-grant basis.”
Yet, subject to their complying with the conditions imposed in the G.R, the
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Government decided to convert those into aided schools.
80. In the end, the learned Division Bench has observed that if the
second petitioner’s application has not been finally rejected, it would be open
for the petitioners to represent to the authorities concerned, “pointing out that
the second petitioner has scrupulously followed the policy of reservation.”
81. In Bormalnath, the school was brought out of the “permanent no-
th
grant” category and later admitted to grant-in-aid based on the GR, dt.15
November 2011. So the Court has observed that “if the petitioners want to
take benefit of the G.R, [they] will have to satisfy the eligibility criteria
provided in clause (2)” of the GR.
Radhey Shikshan Vikas Mandal:
th
82. Denied the grant-in-aid under the GR, dated 15 November 2011,
th
the petitioner schools challenged the denial. By the judgment, dated 16 July
2014, this Court set aside the impugned orders because the petitioner schools
were not given any opportunity of hearing. The authorities were directed to
decide the petitioners claim afresh, hearing them.
83. The State of Maharashtra moved civil applications for recalling and
modifying the Court’s order. The Division Bench in State of Maharashtra v.
Radhey Shikshan Vikas Mandal Kowad, has considered this CA. The State
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Government wanted the Court to review or modify only direction nos. (iii)
and (v): that the authorities should release the salary grant to the writ
petitioners, and that they should also release the arrears of salary grant.
84. The learned counsel for the school relied on Ashoka Kumar Thakur
to contend that reservations in private unaided institution offend Article 19(1)
(g), besides disrupting the basic structure of the Constitution.” On backlog of
reserved posts, he contended that school had followed the reservation policy as
was in force from time to time .
85. Dismissing the CA, a learned Division Bench has observed that the
2011 GR clearly lays down the Government policy, as well as the procedure for
giving the grantinaid to “the permanently unaided primary and secondary
schools (excluding English medium schools in the State of Maharashtra)”. In
that context, it has examined paragraphs 2, 3, 4 and 11 of the GR. Besides
that, the Court has also taken the aid of Ashok Kumar Thakur to decide the
controversy.
86. Eventually, Radhey has held that “when the Government is not
going to grant aid with retrospective effect, the Government cannot apply its
reservation policy with retrospective effect. According to it, the Government
“cannot insist that the reservation policy should have been followed with
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retrospective effect prior to the date of application of the school management
under the [2011 GR]” Radhey has also accepted the petitioners’ contention
that the GR does “not provide for any marks for reservation policy in respect
of the past period.”
87. Of course, having held as above, Radhey entertained the CA on a
technical plea and partially modified its earlier order. That does not, however,
concern us here.
88. Granted, none of the parties to the litigation has brought to the
Court’s notice its earlier judgment in Bormalnath. Nor has anyone informed
the Court that Ashoka Kumar Thakur stands overruled in Pramati
Educational and Cultural Trust on the point the petitioners relied: imposing
reservation on private unaided institution constitutes an unreasonable
restriction upon a person’s fundamental right guaranteed by Article 19(1)(g) of
the Constitution to establish and run educational institutions.
89. That said we cannot miss out on the fact that Pramati Educational
and Cultural Trust has addressed the reservations in admissions to schools, but
not in employment.
Bhairavanth Shikshan Mandal:
90. Another decision in the series is Bhairavanth Shikshan Mandal,
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23
Khed v. State of Maharashtra , to which one of us (B. R. Gavai J) is a party.
Contrary to the earlier cases, in this one the petitioners not only raised a plea
against Clause (2) of 2011 GR but also persisted with it. So the Court had to
rule on it.
91. The petitioners invoked T.M.A. Pai Foundation, P. A. Inamdar, and
Pramati Educational and Cultural Trust to contend that the unaided schools
cannot be imposed with the burden of reservation policy. The petitioners have
also asserted that when they have undertaken to follow the reservation after
they are given the grant-in-aid, there is no reason for the Government to insist
on its compliance as a condition precedent. The petitioners have also invoked
Article 21A of the Constitution. Bhairavnath has considered both Bormalnath
and Radhey. It has held that Radhey was rendered in ignorance of Bormalnath,
the latter of the two coequal Bench decisions. Besides that, Bhairavnath has
also declared Radhey per incuriam both because it conflicts with Bormalnath
and because it follows Ashoka Kumar Thakur, a Supreme Court judgment that
had been overruled. So Bhairavnath has held that compliance with the policy
of reservation “is a basic requirement even for making an application for
assessment to be admitted to the grant in aid.”
23 WP 8961/16 dt. 7.6.17
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92. About the incorrectness of Radhey, Bhairavnath has further
elaborated. It has, first, observed that the imposition of reservation on unaided
institutions stands judicially accepted in Pramati. That is, the Ninety-third
Constitutional Amendment, which inserted Clause (5) of Article 15, has been
upheld; it has neither abrogated Article 19(1)(g) nor affected the basic
structure of the Constitution. Then, Bhairavnath has traced Radhey’s journey
to the Supreme Court.
Radhey’s Result in Supreme Court:
93. Evidently, the State took the matter to the Supreme Court. Through
th
its Order, dated 9 December 2016, the Supreme Court was
“not inclined to interfere with the order passed by the High Court. The special
leave petitions are dismissed.” It has, however, clarified that “the respondent
will be entitled to grant-in-aid from the date on which it fulfils the
requirements of the [GR], dated 15.11.2011, to the [Government’s]
satisfaction.”
94. It seems, in Radhye’s, the school’s complying with reservation to “the
satisfaction of [the Government]” has raised doubts: is that compliance a
condition-precedent to the grant-in-aid or a condition-subsequent? So the
respondent school filed a clarification petition before the Supreme Court. In
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the clarification petition, it raised these points: (a) the Government cannot
reject the salary grant because the school has not followed the reservation
policy even before its applying for the grant (b) because the findings in this
respect from the Bombay High Court have become final, as have been
confirmed by the Supreme Court; (c) the purported backlog, anterior to the
school’s applying for the grant, cannot affect its claim. But, through an order,
th
dated 10 March 2017, the Supreme Court dismissed the clarification petition.
Merged or Survived?
95. Has the High Court’s Judgment in Radhey’s survived or got merged
with the Supreme Court’s, if any? To put it pithily, does the High Court’s
Radhey attracts the doctrine of merger. We reckon we need not labour on that
score. Not only Radhey but also Bormalnath and Bhairavnath can be
distinguished. So the question of Radhey’s merger or its survival renders itself
academic.
96. In all these three cases, the schools were granted recognition on
“permanent unaided basis”. Later, because of the representations from many
such schools, the Government took a benevolent view, removed the tag
“permanent” from the schools’ unaided status, and considered their cases for
grant-in-aid. And for that purpose, it has brought out GR 2011.
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97. The decisional dust thus settled, can we bring down the curtain
on the issue? No not. We ought to examine whether the holding of
Bormalnath Shikshan Sanstha and Shri Bhairavnath Shikshan Mandal apply
to the facts of this case ? Indeed, a decision gets robbed of its precedential
value if its ratio stands divorced from its facts. After all, a case-holding—
that is, the binding precedent—is the happy combination of fact and law.
th
The Scope of GR, dated 15 November 2011:
98. Radhey has set out and examined para (2) of the 2011 GR. And it
reads:
(2) Eligibility of schools:
The proposal of those schools which comply with the below-
mentioned requirement would be accepted for evaluation.
The proposal of those schools which do not comply with
these requirements be not considered for evaluation.
(a)
The school should observe the terms and
conditions decided by the Government from time to time
for granting recognition.
(b) At the time of making an application for
the evaluation, the school should have followed the
reservation policy in respect of recruitment of employees
in the school.
(c) . . .
(d) The evaluation be made as per the revised
norms of those unaided schools which are not yet
receiving the grant in aid.
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The issue to be addressed :
99. As we have already mentioned, to get the grant-in-aid, an
educational institution needs to comply with the statutory regime:
following the reservations in its employing staff and faculty. But should that
reservation be pre- or post-grant? In other words, is it a condition precedent
or a condition subsequent? If the institution must implement the policy of
reservation as a condition precedent, the State tends to apply the
constitutional mandate horizontally; if the requirement , on the other hand,
is only a condition subsequent, the mandate applies vertically. Granted,
most modern constitutions are vertical, a few adhering to horizontality,
though. Indian constitution has avoided either extreme; it has, instead,
adopted the indirect horizontality, so to say.
100. In the sphere of education, Article 21A, read with Article 15 (5),
of the Constitution applies a constitutional mandate—free and compulsory
education—horizontally and ropes in even the private unaided educational
institutions. And Pramati Educational and Cultural Trust upholds this
constitutional horizontality, as did Society for Unaided Private Schools of
Rajasthan. In the sphere of employer, no such parallel development is seen.
101. As the petitioners’ schools had been assessed by A.Y. 2009-10, only
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the GR, dated 17th February 2004, and the Government Circular, dated 3rd
January 2005, applied to those schools. On the other hand, the revised norms
or procedure found in GR, dated 15th November 2011, applied prospectively
to the erstwhile permanently-unaided schools or other schools that had to be
assessed afresh beyond AY 2009-10. Indeed, Para 2 (d) of the 2011 GR directs
that “those unaided schools which have not yet been brought under grant-in-
aid,” must be assessed as per the revised norms mentioned in that GR.
102. The Petitioner schools maintain that the condition about the
schools’ complying with the reservation came to be prescribed for the first time
th
through clause 2 [b] of the Government Resolution, dated 15 November
2011. That said, we must also note that the first respondent issued the 2011
GR to prescribe the norms for providing a grant to the “permanent unaided”
Primary and Secondary Schools. Even the Education Department attests to
this fact.
103. Section 16 of the MEPS Act does empower the Executive to bring
in subordinate legislation retrospectively, but that retrospectivity cannot
prejudicially “affect the interests of any person to whom such rule may be
applicable.” The GR, dated 17th February 2004, allows the Government can
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change “the formula for grant-in-aid taking into consideration the availability
of the financial resources and the needs of the State and their priority.” We
wonder whether this change in policy as the Government now insists on—and
with retrospective effect, at that—has anything to do with the State’s financial
resources or its needs, even priorities. We must read “the financial resources,
needs and priorities” ejusdem generis for they all relate to the formula of the
grant-in-aid and the fund availability.
th
104. Further probed, we find from GR, dated 11 December 2012
that the proposals for the grant from these schools were received by
December 2010. And these schools, in fact, were evaluated “as per the
norms in the GR No. SSG/1003/[516/03]/SE1, dated 17,2.2004 and No.
NGSS/1804/[656/04] SE1, dated 3.1.2005.”
The Conclusion:
(1)
The GR, dated 15th November 2011, was issued to convert the
permanently non-aided schools into simple unaided schools and
then to evaluate them for grant-in-aid;
(2)
By the time the GR 2011 was issued, the petitioner schools had
been evaluated; they received in-principle approval, but could not
have the funds allotted and disbursed for the reasons unconnected
with their eligibility. So the legislative, administrative, or even
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policy changes shall not affect these schools adversely;
(3) All the three decisions—Bormalnath Shikshan Sanstha, Radhey
Shikshan Vikas Mandal, and Bharavanth Shikshan Mandal—differ
on one vital factor from the cases we are now called upon to
adjudicate: the previous decisions concern the schools granted
recognition on “permanent unaided basis”. To have that tag
removed and to have them considered for grant-in-aid, the
Government has brought out GR 2011.
Result:
105. We, therefore, allow the writ petitions. We set aside GR, dated
15th November 2011 and all other consequential GRs and letters in so far
as they insist on the petitioners’ complying with the reservation mandate
retrospectively. Instead, it will suffice if the schools comply with the
mandate from the date they are provided the grant-in-aid, for which the
schools have already secured the official acceptance, as is evident from the
official correspondence. And we also clarify that the petitioners’ schools
have no right to claim the grant-in-aid retrospectively. Nevertheless, besides
exercising its discretion about when the grant is to be extended to the
petitioners’ schools, the Government will introduce no new norms to stifle
the schools’ entitlement for the grant. Even in distributing its largesse, if it
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were, the State’s action ought to conform to some principles which meet the
test of reason and relevance, besides being rational and non-discriminatory.
No order on costs.

(DAMA SESHADRI NAIDU, J) (B.R.GAVAI, J)
L.S. Panjwani, P.S.
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