Hon'ble Vivek Kumar Birla,J.
Heard Sri Shailendra, learned counsel for the appellant and the learned Standing Counsel for the respondents.
This appeal questions the correctness of the judgement of the learned Single Judge dated 18th August, 2011 whereby the writ petition filed by the appellant-petitioner challenging the order dated 20th June, 2008 passed by the respondents refusing to bring the institution under the grant-in-aid list of the State was dismissed.
The learned Single Judge has upheld the order of the State Government, and has further opined that in view of the Government Order dated 16th January, 2008 having not been challenged, the right of consideration of the appellant under the application of 29.9.2006 no longer survives. Thirdly the learned Single Judge made an observation that if the appellant is now fulfilling the terms and conditions, it shall be open for the institution to apply before the State Government to consider accordingly provided there is a scheme in future for bringing the institution under the grant-in-aid list.
The dispute begun when the institution is stated to have applied for being brought in under the grant-in-aid list on the basis of the advertisement dated 9th September, 2006. The appellant alleges to have submitted its application on 29th September, 2006, the last date of submission being 3rd October, 2006. The appellant received a communication on 3rd November, 2006 to the effect that the revenue record relating to the records of right (Khatauni) of the institution appears to be doubtful as there is some overwriting.
In compliance of the said response, the Manager of the institution submitted a fresh copy of the revenue record contending that there is no such discrepancy and the same may be considered.
It appears that since the last date of filling up of application forms had already expired and there were some other institutions as well that were lying for being included in the grant-in-aid list, the State Government issued a Government Order on 27th December, 2006 extending the date for submission of forms for giving benefit to 100 additional institutions. The date extended was given in the time schedule provided therein upto 20th January, 2007 before the Basic Education Officer.
The petitioner-institution after having completed the formality as mentioned in the aforesaid Government Order, he received another communication on 4th January, 2007 firstly indicating that the Khatauni (record of rights of the institution) was not acceptable and secondly there was an overwriting in the description of the staff statement of the institution. To this a reply was submitted again by the petitioner-institution on 16th January, 2007 whereater the appellant's claim was not being considered, as a result whereof the petitioner-institution filed writ petition no. 5056 of 2008, that was disposed of on 25.1.2008 by the following order:
"The petitioner contends that requisite papers for its institution being governed under grants-in-aid has also been submitted before respondent nos. 4 and 5, but the same is not being forwarded by the respondent no. 2.
In the event the requisite papers have not been forwarded by the State authority to the respondent no. 2, it is open to the petitioner to approach the respondent no. 2 and intimate the said authority by an application. If such an application is filed, the respondent authority will issue necessary directions to its subordinate officers.
The writ petition is disposed of with the aforesaid observations."
However, it appears that when the said writ petition was disposed of on 25th January, 2008, the Court does not appear to have been apprised of the Government Order dated 16th January, 2008 whereby the earlier Government Order dated 27th December, 2006 had been withdrawn. This Government Order dated 16th January, 2008 was, therefore not brought to the notice of the learned Single Judge who issued directions on 25th January, 2008 for a re-consideration of the claim of the appellant. It is thus clear that the direction was issued without taking notice of the said Government Order.
The impugned order, which was passed by the State Government and that has come to be challenged giving rise to the present controversy is dated 20th June, 2008. The learned Single Judge after having assessed the entire material on record came to the conclusion that the appellant-institution did not fulfil the requisite condition prior to the cut off date as mentioned in the Government Order and consequently the application form being not complete, rejection was justified. The second ground given by the learned Single is that the Government Order dated 16th January, 2008 was not under challenge by which the right of re-consideration of the appellant did not survive.
The appellant questions the correctness of both the findings.
Sri Shailendra, learned counsel for the appellant submits that so far as the claim of the appellant is concerned, it was raised on the original records that were filed at the time of moving of the application on 29.9.2006. There was no discrepancy including the fact of overwriting. It is for this that the Division Bench of this Court had called upon the learned Standing Counsel to produce the original application along with its enclosure dated 1.10.2006 and subsequently directed the filing of a supplementary affidavit to that effect vide order dated 18.2.2013.
We have gone through the entire contents of the writ petition filed by the appellant as also the applications which were moved before the authorities in relation to the consideration of the claim of the institution. Neither in the writ petition nor in the applications that were filed before the State Government is there any averment that the objection with regard to overwriting in the staff statement is incorrect. As a matter of fact this was not even the ground taken in the writ petition nor was a response given to the State Government. Learned counsel for the appellant has been unable to point out any averment in the writ petition or in the application to that effect. He submits that such fact has now been stated in paragraphs 14 and 16 of the affidavit appended along with this appeal.
We are unable to accept the aforesaid stand in the appeal keeping in view the fact that once the appellant-petitioner was fully aware of the objection then it was his duty to have taken such objection either before the State Government or even before the learned Single Judge. We, therefore, cannot now permit the petitioner to raise this issue for being examined as it appears to be an afterthought for the following reasos. The appellant had failed to object to the said finding or objection of the State Government before the authorities in the proceedings, which were conducted before the State Government or even before the learned Single Judge.
It would be appropriate to mention that as per the order passed by the Court on 9th July, 2012, the original record was produced and perused by the Division that earlier heard the matter on 18.2.2013 and passed the following order:
" The record which has been produced by the learned State Counsel may be filed by him by way of Xerox copy upon a supplementary affidavit within a weeks.
List in the next cause list.
The supplementary-affidavit will specifically disclose after going through the advertisement, as well as prescribed proforma for making the application for taking the Institution on grant-in-aid, whether documents, of the nature, referred to in Annexure No. 13 were to be submitted at all and if not, whether an application could be rejected on the finding that certain documents which have been submitted. although not required, are defective."
Learned counsel for the appellant Sri Shailendra therefore cannot plead ignorance or absence of notice of the aforesaid fact that is recorded in the order sheet of the Court.
It is thus clear that the application form of the appellant-institution along with the stated overwritten document was before the Court. The supplementary affidavit has not been filed but the Court has nowhere recorded that the overwriting was not present after perusal of the said document. To the contrary the order dated 18.2.2013 requires an explanation about the documents that were required to be submitted and whether the application could be rejected even if the said documents are not required.
We are of the opinion that a document particularly a staff statement is the basis for the assessment of grant-in-aid as per the scheme itself and in order to bring the institution on the grant-in-aid list, since the liability of salary is saddled on the State, the staff statement is necessary. Secondly, if there is an overwriting or interpolation in the said document, the same is a relevant consideration and therefore the application in the event of such a defective document can be rejected. After the order dated 18th February, 2013 was passed by the Division Bench, even if the State did not fine any supplementary affidavit, the appellant did not take any steps to establish that the record which was produced by the State counsel and noted in the order dated 18.2.2013 did not contain any interpolation or a document with overwriting. Thus, the appellant having failed to object to such particular to clarify its stand even if the production of record works adversely against the appellant.
Apart from this, the second ground of the learned Single Judge is equally correct, inasmuch as the Government Order dated 16th January, 2008 withdraws the government before 27th December, 2007. In such a situation, the appellant's application as subsequently supplemented was incomplete and was not in order for being considered as on 27th December, 2006. Once the State Government had withdrawn the said Government Order vide G.O. dated 16th January, 2008 and has not been challenged by the appellant, the learned Single Judge was fully justified in not allowing the re-consideration of the claim of the appellant on any fresh documents, which were filed after the notice dated 4th January, 2007.
Sri Shailendra submits that the case of the appellant does not fall within the Government Order dated 27.12.2006 and, therefore, its withdrawal on 16.1.2008 has no bearing on the case. The Government Order dated 27.12.2006 was an extension of time for such institutions who had not applied earlier. The application of the appellant even though filed earlier was defective. Thus, the appellant was availing of a second opportunity to press the application. This, therefore, clearly means that the application of the appellant was not in order and any subsequent attempt clearly amounted to pressing a subsequent claim. This, in our opinion, could have been processed only under the cover of the Government Order dated 27.12.2006, which came to be withdrawn on 16.1.2008.
However, in spite of this even if the same does not apply, the appellant's application remained a defective application with a stated document with an overwriting which fact has not been dispelled by the petitioner even after the document was produced and perused by the Court as recorded on 18.2.2013. This burden was clearly on the petitioner that was not discharged. The Court upon perusal had not rejected the contention of the State.
As noted above, the same could not be successfully questioned by the appellant even before us for the reasons given hereinabove.
On the facts, if the impugned order records that if now the appellant fulfilled all formalities, in that event it will be open to the State Government to consider its claim, is therefore justified.
In the light of the observations made by the learned Single Judge, we for what has been observed by us do not find any good ground much less a legal ground to interfere with the judgement and order of the learned Single Judge dated 18.8.2011.
The appeal lacks merit and is dismissed accordingly.
Order Date :- 24.5.2016 Abhishek