The Bombay High Court has held that unless unaided schools conform to the policy of reservation as laid down by the state government, they would not be entitled to any grant-in aid.
A division bench of Justice BR Gavai and Justice Riyaz Chagla was hearing a bunch of petitions filed by unaided schools from across Maharashtra challenging the validity of Clause 2 of a Government Resolution dated Nov. 15, 2011.
Under the said GR, the state government sought to bring in permanent non-grant-in-aid primary and secondary schools.
Sub clause (b) of Clause 2 of the GR reads-
“While making an application for assessment, the policy of the State Government regarding reservation in employment should be followed by the school. (This should not be applicable to minority schools).”
Counsel for the petitioners, Suresh Pakale, submitted that in view of the judgment of the Supreme Court in TMA Pai Foundation vs State of Karnataka, PA Inamdar vs State of Maharashtra, Pramati Educational and Cultural Trust (Registered) vs Union of India, unaided schools cannot be imposed upon to have a reservation policy.
Pakale further submitted that his clients were discharging the duties as agents of the state in providing free and compulsory education to the students. Therefore, the state cannot shy away from its responsibility to reimburse these schools as mandated under Article 21 A of the Constitution, Pakale said.
Relying on a judgment of a constitution bench of the Supreme Court in Ashok Kumar Thakur vs Union of India, a separate division bench headed by Justice AS Oka, in a judgment dated January 7, 2015, held that the government cannot insist on retrospective application of reservation policy.
However, the state government’s lawyer, senior advocate RS Apte, submitted that the said judgment of the apex court in Ashok Kumar’s case was overruled by a separate bench in Pramati Educational and Cultural Trust (Registered) vs Union of India, and also the judgment by Justice Oka’s bench was challenged before the apex court and in that challenge, the Supreme Court had said: “However, we make it clear that the respondent will be entitled to grant-in-aid from the date on which it fulfills the requirements of the Government Resolution dated 15.11.2011 to the satisfaction of the petitioner.”
Therefore, in view of the above facts, the court held that unless unaided schools conform to the policy of reservation as laid down by the state government, they would not be entitled to grant-in-aid as per the Government Resolution dated November 15, 2011.
Suresh Pakale then submitted that most of the petitioners have already complied with the reservation policy. To this, the court said individual cases may be decided by the competent authorities in accordance with law.