1. The petitioner 'Shree Gandhi Maulana Azad Ashara' has filed the present petition being aggrieved by order dated 23.08.2007 made by the Joint Secretary (Developing Caste), Social Justice & Welfare Department, Sachivalaya, Gandhinagar, whereby order dated 25.07.2006 made by the Director, Developing Caste Welfare Department, Gujarat State, Gandhinagar is confirmed. The authorities have cancelled the licence /affiliation of the hostel (in the prayer, it is stated, 'for school', though in substance, the petition is filed for hostel) run by the petitioner.
2. Order dated 23.08.2007 is produced at Annexure-A, page No.17. In para-2, the reasons are set out as to why recognition granted to the hostel run by the petitioner is cancelled.
2.1 Order dated 25.07.2006 is produced at Annexure-B, page No.19, wherein, in detail, with dates, the reasons are set out as to why the order was required to be passed of cancelling the recognition of the hostel.
3. From the perusal of aforesaid order dated 25.07.2006, it is clear that the petitioner seems to be under an impression that he is obliging the Government by running the hostel and that at his 'sweet will', he can start the hostel or can close down the same or can start at any later date, without any regard to the Rules governing the subject matter.
3.1 It is specifically mentioned that the hostel was not run for academic years 2003-04 and 2004-05. However, as the petitioner gave assurance that it will start the hostel from June 2005, the recognition of the hostel was not cancelled and an opportunity was given to the petitioner to start the hostel. It is also recorded in the order that it was made clear to the petitioner that if the hostel will not be started, with necessary facilities, according to the Rules of the Government, no further opportunity will be given to the petitioner and the recognition of the hostel will be cancelled. Though the academic year started since 12.06.2005, the petitioner did not give any intimation to the District Welfare Officer (Developing Caste) till 30.06.3005. Later on, by letter dated 15.09.2005, the petitioner informed that as the possession of the building was not obtained by the petitioner, the hostel could not be started, but the same will be started after Diwali.
3.2 It is after the aforesaid assurance given by the petitioner, in the academic year 2005-06, after Diwali, the Squad visited the place by surprise inspection on 22.12.2005 and at that time, the building for hostel was found to be closed. A show cause notice was issued on 17.01.2006, which was replied by the petitioner by letter dated 24.01.2006. In the reply, excuses are set out for not running the hostel. It is also stated in the reply that in the mid of the term, it is not possible to start the hostel and therefore, after summer vacation, in June 2006, the hostel will be started.
4. The authorities, after taking into consideration the fact that consecutively for three academic years, i.e. 2003-04, 2004-05 and 2005-06, as the hostel is not run, the recognition is cancelled.
5. The order is well considered and all aspects are taken into consideration by the authorities. In one of the paragraphs of the order, it is recorded that:-
The petitioner was granted recognition to run the hostel from academic year 1985-86; that even prior to devastating earthquake in January 2001, in earlier years, from time to time irregularities were noticed. It is also recorded that by order dated 13.01.1998, 10% maintenance grant cut for the academic year 1995-96 was imposed; that by order dated 05.10.1998, reduction in the sanctioned strength from June 1998 was imposed and for the year 1997-98, 10% maintenance grant cut was again imposed; that by order dated 07.02.2000, from the grant admissible for the academic year 1999-00, 5% cut was imposed.
5.1 The aforesaid instances were quoted to substantiate the statement that from time to time, irregularities were noticed during the period even prior to the earthquake of January 2001.
5.2 It is also recorded in the order that after January 2001 (earthquake), the petitioner did not run the hostel from January 2001 to May 2002. Thereafter, in the academic year 2002-03, the irregularities in the management of the hostel were noticed and therefore, by order dated 17.02.2003, the petitioner was informed that the petitioner will not be entitled to receive any grant for the period January 2001 to May 2002 and from the grant admissible for the year 2002-03, there will be 30% cut.
5.3 It is recorded in the order that petitioner was intimated from time to time to improve the management of the hostel. By order dated 17.02.2003, it was informed that in future, if any irregularity with regard to the strength or any other matter will be noticed, proceedings for cancelling the recognition of the hostel will be undertaken. Despite this, the petitioner did not run the hostel for the academic year 2003-04, 2004-05 and 2005-06.
5.4 The District Welfare Officer (Developing Caste), Bhuj had visited the premises on 29.01.2004. At that time, it was found that the hostel is closed.
Instead of admitting the reality of hostel being closed and that the petitioner is having some difficulty, the petitioner asserted that the hostel was running and that due to festivals, the students had gone on leave. To establish this false, evidences were created and mis-representation was made to the department.
5.5 Even thereafter, the hostel was closed and therefore, show cause notice was issued to the petitioner in this regard. During the proceedings, Manager of the petitioner, in personal representation on 01.09.2004, made a statement and submitted that for the year 2003-04, the hostel could not be started and for the academic year 2005-06 also, the hostel could not be started.
Thereafter, as recorded earlier, there was assurance given that the hostel will be started from June 2005., but the same was not started, though it was the last opportunity given by the Department.
6. By order dated 24.11.2008, the Court directed Mamlatdar, Bhuj and District Social Welfare Officer, Bhuj to prepare a report. The order reads as under:-
The Mamlatdar, Taluka Bhuj, and the District Social Welfare Officer, District Bhuj, may visit the premises of the petitioner-School without prior intimation on any working day for joint inspection and submit report to this Court on or before 8.12.2008.
In compliance of the aforesaid order, one Shri Kantilal I.Parmar, Joint Director, Developing Caste Welfare Department, has filed affidavit in reply affirmed on 03.02.2009. Along with the said affidavit, he has placed on record a Report at Annexure-R-I.
7. In the hearing, which took place on 20.07.2009, the Court noticed that in the said report, it is mentioned that:-
In Baxipanch Kumar Chatralaya, Gorevalli, no student of standard 8 to 10 was present.
The 'Grahpati' of the hostel, cook and 'Chokidar' were not present.
The toilets of the hostel were found to be not in a position to be used and in a discarded condition, which suggests that the hostel for students of standard 8 to 10 is not running.
At the place of the hostel, the attendance register of the students, attendance register of the employees, storage register, 'Rojmel' (daily book), ledger book, admission register of the students, dead stock register, cash book or any other record pertaining to the hostel is not found.
7.1 In the report, it is also recorded that:-
In the premises of the petitioner institution, one 'Ashram Shala' of Baxipanch for standard 1 to 7 is running and at the time of visit (inspection), 41 students of 'Ashram Shala' were found present in the building of the hostel; that these students are not of the hostel, but are of Grant-in-Aid 'Ashram Shala', which is another scheme of the Government.
8. Taking into consideration the aforesaid details, this Court directed the learned Assistant Government Pleader to take specific instructions with regard to Item No.3 and the contents of the later part of the report.
8.1 In response to that, an additional affidavit in reply is filed on behalf of respondent No.2 by one Shri Kantilal I.Parmar, In-charge Joint Director, Developing Caste Welfare Department, Gandhinagar. Para-5 of the said affidavit reads as under:-
5. I am filing this present Additional Affidavit in reply for a limited purpose to produce on record the photographs taken by the District Social Welfare Officer, Bhuj on 15.10.2008 during the course of inspection dated 15.10.2008, the Joint Inspection report dated 16.10.2008, rojkam dated 15.10.2008 and photographs taken on 28.11.2008 at the time of Joint Inspection dated 28.11.2008. I say and submit that a Joint Inspection is carried out on 28.11.2008 in compliance of the order passed by this Hon'ble Court dated 24.11.2008 (Coram: Hon'ble Mr.Justice Anant S.Dave) and the photographs of the toilets were taken during the course of the Joint Inspection.
8.2 Along with the additional affidavit, photographs of toilets are produced. The same are self-speaking and suggest that the toilets are not in use and not in a position to be used.
9. In response to the aforesaid, learned advocate for the petitioner placed another photographs for perusal of the Court.
These photographs do not carry the matter any further and it an be noticed that the toilets are not in a position of being used.
10. Learned advocate for the petitioner invited attention of the Court to page Nos.57 to 91 of the petition and submitted that the hostel is running.
All these documents, even if taken into consideration, are not sufficient to dislodge the inspection report and the photographs produced along with the additional affidavit filed on behalf of respondent No.2.
11. After the affidavit is filed by the Joint Director, Developing Caste Welfare Department, Gandhinagar affirmed on 03.02.2009, an additional affidavit is filed by one Shri Meerkhan, son of Shri Peermohmad affirmed on 12.02.2009. Along with this additional affidavit, number of affidavits of the students as also of the cook and Chokidar of the hostel are filed.
11.1 The contents of the affidavits are speaking for itself. Page No.100 is an affidavit filed by one Shri Mutva A.Matin Khidharkhan, aged 26 years,claiming to be a cook in the hostel. He has stated in the affidavit that:-
...... On 28.11.2008, Bhuj Taluka Mamlatdar Shri Baldevbhai Desai and In-charge District Social Welfare Officer (Developing Caste) Shri J.A.Barot had come to the campus of the petitioner institution; that they had started inspection of Baxipanch 'Ashram Shala' run by the petitioner institution; that he met the aforesaid officers and had introduced himself as cook of the hostel, but the officers did not pay and heed to that; that the students of Bannikumar Chatralaya were in the campus, but they did not verify about the same.......
11.2 It is important to note that this deponent goes to say that:-
...... From the conduct of the officers, he was able to draw an inference that these officers are prejudiced against Bannikumar Chatralaya. (emphasis supplied).
This drawing of inference by a person like 'cook' aged about 26 years is self-speaking that the petitioner institution is capable of manipulating the evidence.
12. The petition is under Articles 14, 226 and 227 of the Constitution of India. Having gone through the contents of order dated 25.07.2006, the Court finds no reason to interfere with the orders passed by the authorities. Incidentally, in two orders, concurrent findings are recorded about the irregularities and the factum of hostel being not run by the petitioner institution. The petition is dismissed. Notice is discharged. No costs.
(Ravi R.Tripathi, J.) *Shitole Top