G.D. KAMAT, J.


This petition is claimed to be in Shikshan Prasarak Sangh, Durbhat, Society registered under the Societies Registered Act, 1860, under Khumbo phadt, styling as its member on behalf of himself and 97 other members thereof. In addition to impleading the State of Goa and Director of Education as respondent Nos. 1 and 2, Shri Krishnanath Baburao Naik has been impleaded as respondent No. 3.


2.The petition seeks a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order under Article 226 of the Constitution of India against the respondents for quashing the order of the Government of Goa bearing No. DE/Accd. I/Case-file/P/42/88-89/1428 dated 11th June, 1990, Annexure P-16 and two consequential Orders Annexure P. 17 colly.


3.What led to the making of the impugned order dated 11th June, 1990, the controversy involved in this petition has important bearing in the background of Writ Petition No. 17 of 1989 disposed of by a Division Bench of this Court on 6th October, 1989, the rejection of the Special Leave Application by the Supreme Court and the take over of the management of a school known as Sharada English High School, Durbhat, by the Authorised Officer appointed by the Director of Education.


4.People of village Durbhat promoted a society in the name and style of Shikshan Prasarak Sangh, Durbhat, for short "the Sangh and got it registered in the year 1964 under the Societies Registration Act, 1860. The promoters and members of the Sangh a majority of whom belonged to the fishermen community. As per the object of the Sangh it is clear that it was to promote physical, mental and moral standards of the people specially the youth and the students of Durbhat and for the realization of the said objective to open school, libraries etc. The Sangh started running a Secondary School at Drubhat known as Sharada English High School, for short "the School" since 1967, which was duly recognized by the Government for the purpose of receiving grants-in-aid. It is common ground that the said school caters to the needs of the students not only of Durbhat but also of the neighbouring villages. In the year 1967, the respondent No. 3 Krishnanath Baburao Naik who resides at Margao was got involved by the members of the Sangh and accordingly elected to be the President of the Sangh. It is the case of the petitioners that this Naik belongs to Kshatriya Bandari Samaj, i.e. agriculturists and toddy tappers community and not to the fishermen community. The reason as to why Mr. Naik was involved in the Sangh and elected its President, as the averment goes, is that he was a member of the Legislative Assembly of the then ruling Maharashtrawadi Gomantak Party. It appears that after 1972 there had been no elections to the executive body of the Sangh with the result said Krishnanath Baburao Naik continued to be its President and Vishwanath P. Phadte to be the Secretary for quite a length of time.


The school had no building of its own but since its inception started functioning in two premises (1) "Mandup", and (2) "Math", which belongs to an association of fishermen known as Sociedade des Pescadores, for short "Society", literally translated means Society of Fishermen. Needless to mention that it is an association of fishermen of the village of Durbhat, the members of which otherwise are the promoters and members of Shikshan Prasarak Sangh which had let out the said two premises to the Sangh to run the said school.


5.It appears that after the year 1972, in the absence of active participation and involvement of the members, the Sangh almost became defunct as not much attention was paid to the affairs of the Society. The elected President K.B. Naik and Secretary Vishwanath Pandurang Phadte continued as de facto office bearers until one day they fell out from each other. Since no rent had been paid to the Society for a period of about 10 years from 1977-1987, the Society through its advocate served a notice upon the Sangh dated 28th January, 1988, demanding the arrears of rent. Mr. Naik by his reply dated 18th February, 1988, joined issue with the Society regarding arrears of rent, but agreed to vacate the school premises within the next few months. The petitioners over this decision of Mr. Naik to vacate the building was without reference to general body or any other member of the executive body. The members of the Sangh therefore approached the Society and requested the withdrawal of the eviction notice in the larger interests of the student community of Durbhat and the School. It appears that the Society was agreeable to this request provided the rent is paid so that out of the rents collected the premises could be repaired. It is averred in the petition that the third respondent was informed that the Society is no longer interested in the eviction of the school and is even agreeable to give some land free of cost to enable the Sangh to take up a new construction of the school building. Despite all this from the beginning of the academic year 1988-89 the respondent No. 3 without reference to anybody, from 6th June, 1988, shifted one division of each of the classes V, VI, VII, VIII & IX of the said school to a new premises at Adpoi, a neighbouring village about 1 km. away from the existing school. The petition states that out of 336 students 201 students constituted the classes shifted to Adpoi. With the shifting of five classes, it is averred that the Head Master Mr. Sagun Naik and one Peon moved to Adpoi, but the remaining 18 employees, majority of whom were teachers, refused to go to Adpoi and continued in the existing school at Durbhat. Having seen that some classes of the school were shifted to Adpoi, an adjoining village, on behalf of the Society, third respondent Naik was sounded that the Society has no objection for bringing back the classes to Durbhat so that the school functions at Durbhat, with a further representation that arrears of rents could be settled amicably at the same time offering a suitable plot free of cost for the construction of the school building. It appears that a great discontent followed the shifting of the classes among the people of Durbhat as also the members of the Sangh leading to a law and order situation. An attempt was made calling upon the respondent No. 3 Naik to convene an Extraordinary General Board Meeting of the Sangh to consider the explosive situation having failed as the third respondent Naik did not convene any meeting, some of the members who by now become active invited an Extraordinary General Body Meeting on 7th August, 1988, at which one Sadanand K. Shet was elected as President and Mr. Vishwanath Pandurang Phadte, as Secretary and some more office bearers like Vice-President, Joint Secretary, Treasurer, etc. It is not disputed that the shifting of the classes generated an unrest among the residents of Durbhat and apart from creating a law and order problem generated a chaotic situation in the school also.


6.The refusal of the teachers to shift to Adpoi, also added not only to the unrest generated but also in the academic field with the result that Government was perforced to act in the matter. A memorandum was issued to the Sangh calling upon to show cause why the management of the said school be not taken over by the Government for a period of three years in the first instance under section 20 of the Goa, Daman and Diu School Education Act. That memorandum reads thus:


"Memorandum


No. DE/Acad I/CEZ/Case file/P/42/88-89/3850


Whereas complaints have been received in this Department about the illegal shifting of the classes and improper functioning of the Sharada English High School Durbhat run by the Shikshan Prasarak Sangh, Ponda.


And whereas on investigations made by this Department, it has been verified that commencing with the academic year 1988-89 the said Management of Shikshan Prasarak Sangh, Ponda, running Sharada English High School, Durbhat has shifted the classes namely classes : Std. V-B, VI-B, VII-B and IX-B from Durbhat, Ponda (i.e. original premises) to Adpoi, Ponda beyond a distance of about one km.;


And whereas the Chairman of Sharada English High School, Durbhat in his deposition dated 17-6-1988 before the Officer of this Department has stated that five of the classes had to be shifted to an alternative place i.e. Adpoi, Ponda, because Sociedade de Pescadores of Durbhat, through their Advocate had served a legal notice to vacate the said premises and hand them over to Sociedade dos Pescadores and also because the main building in which 3 of the classes were functioning at Durbhat, Ponda were found unsafe for occupation because of the cracks in the walls;


And whereas subsequently the Administrator of Sociedade dos Pescadores vide letter dated 25-5-1988 has shown willingness to repair the building and withdraw the notice;


And whereas the new premises at Adpoi, Ponda has been inspected and the same is also not found suitable and adequate;


And whereas the President of Shikshan Prasarak Sangh still insists that the action taken by him was necessitated by circumstances.


And whereas the said shifting of the school from Durbhat, Ponda to Adpoi, Ponda has led to discontentment and dissatisfaction among the people of Durbhat, Ponda, leading in agitation.


And whereas the conflictions stand taken by the different groups namely President of Shikshan Prasarak Sangh and the President of Sociedade dos Peseodores and the people of the two villages namely Durbhat and Adpoi has resulted into unprecedent situation and malfunctioning of the school as presently majority of the regular teachers of the school are unable to attend their duties because some of the local people of Durbhat are obstructing them from reporting to duties at Adpoi, Ponda and the school is presently being run without 18 out of 20 approved employees and whereas, the regular employees who are unable to attend the school are not paid from June, 1988;


And whereas all our efforts to settle this dillematic situation amicably have not succeeded due to non-co-operation from both the rival groups;


And whereas the Management has acted ex-parte without consulting the Director of Education;


And whereas the Management of the said school had contravened the provision of Rule 42 of the Goa, Daman and Diu School Education Rules, 1986 by shifting the premises to a different locality i.e. from Durbhat, Ponda to Adpoi, Ponda which resulted the present chaotic situation leading to the improper functioning of the school, sufferings of the student community, discontent and dissatisfaction among the dual groups leading the situation to the point of no return and no amicable settlement;


And whereas in view of facts and circumstances as brought out on the record the Government is satisfied that the managing committee and the manager of the said school have contravened the provision of sub-section 1(ii), (iii) & (v) of section 20 of the said Goa, Daman and Diu School Education Act, 1984;


And whereas it is expedient in the public interest and in the interest of School Education the Government has no other alternative but to invoke the provision of section 20 of the said Goa, Daman and Diu School Education Act, 1984, and to take over the Management of the School for a period of 3 years for the first instance. Now, the management of the Shikshan Prasarak Sangh, Ponda is hereby called upon to show cause within 10 days of the receipt of this memorandum as to why the Management of the school should not be taken over by Government for a period of 3 years in the first instance in terms of section 20 of the Goa, Daman and Diu School Education Act 1984 so as to secure the proper management of the said school.


It may please be noted that if no reply is received by due date, it will be presumed that the management has no say in the matter and further action as proposed shall be taken.


By order and in the name of the Governor of Goa.

S.V. Kurade, Director of Education and Ex-Officio Additional Secretary to Government of Goa.

Panaji, 4th October, 1988."


7.A perusal of this Memorandum will suggest that the shifting of the classes from Durbhat to Adpoi was held to be illegal shifting qua regulatory provision in the first place. Secondly, as a consequence the classes were found to be illegally functioning. Thirdly, the shifting of the school had led to discontentment, dissatisfaction among the people of Durbhat leading to agitation. Fourthly, a cleavage had arisen between the people of two villages Durbhat and Adpoi as also between the respondent No. 3 claiming as President of the Sangh as against the claim by others as office-bearers with the result two managements and lastly the efforts of the department to amicably settle the matter having failed had resulted in chaotic situation leading to improper functioning of the school whereby the student community was suffering and therefore, the take over of the management of the school for a period of three years was proposed.


8.Respondent No. 3 replied to this memorandum literally making out a case that the school was forced to shift the classes from Durbhat to Adpoi on the ground that eviction notice had been served and further that one of the buildings had been unsafe for occupation.


9.By the order dated 3rd January, 1989, the Government in terms rejected the cause shown by the respondent No. 3 Naik and directed to take over of the management of the school for a period of three years in the first instance. It was interated in the order that the Government is satisfied that it is expedient in public interest and in the interest of school education to secure proper management of the said school initially at least for a period of three years with immediate effect.


10.The respondent No. 3 Naik felt aggrieved by this order and as President of the Sangh instituted a writ petition in this Court being Writ Petition No. 17 of 1989. Interim order of stay of the operation of the Order dated 3rd January, 1989, was obtained alongwith rule on 12th January, 1989. During the pendency of this petition, intervention was sought by Shri Sadanand K. Shet who as mentioned earlier asserted that he was elected President in the Extraordinary General Body Meeting on 7th August, 1988. It may be of some interest to point out at this stage itself that as the matter related to education and the inconvenience that caused to the students and otherwise the unrest had its own telltale, the Division Bench to which one of us was a party (Kamat, J.) attempted to bring about a settlement of the dispute and when no settlement was in sight, the petition was heard on its merits and judgment pronounced on 6th October, 1989. The petition filed by the respondent No. 3 Naik was dismissed with the result the take over order dated 3rd January, 1989, sprang into action. The Division Court observed that by shifting the classes from Durbhat to Adpoi without prior approval from the Director of Education the school management has infracted Rule 42 of the Goa, Daman and Diu School Education Rules, 1986". The Division Court repudiated the contentions that there was no violation of Rule 42 for the entire school had not been shifted but only some classes had been shifted or that the shifting was as a result of unsafety of one of the premises in which the school was functioning at Durbhat. For that matter, the Division Court even observed that on account of shifting of the school from Durbhat to Adpoi there was a lot of agitation among the villagers almost creating a law and order problem even to the extent of disturbing public peace and tranquility and further that there was breach of public peace and therefore the public authorities were left with no alternative but to make the impugned Order of take over its management which was done not only in the public interest generally, but also in the interest of the school education particularly (para 10 of the judgment).


11.Once this judgment was pronounced the Director of Education directed Shri V.B. Naik, Deputy Education Officer to take over the management of the said school pursuant to the Order of 3rd January, 1989, and to function as the authorized officer. It appears that very strangely but unreasonably on 4th January, 1990, the Authorized Officer took charge of the management of whatever divisions and classes of Sharada English High School at Durbhat, but did not take over the management of Adpoi divisions and yet the Department did not want to accord recognition to the classes conducted at Adpoi. This situation further complicated the affairs relating to the classes at Adpoi and the respondent No. 3 Naik was put to a great predicament since the Directorate of Education was not according recognition to the classes conducted at Adpoi and the Government only took over the classes going on at Durbhat. One has only to imagine the financial burden of payment of the salaries of the teachers and running expenditure of the classes conducted at Adpoi. In fact, the situation was as if the Director of Education had cornered respondent No. 3 Naik.


12.In the meantime, respondent No. 3 Naik approached the Supreme Court with a Special Leave Petition No. 1611 of 1990 against the judgment delivered by the Division Bench on 6th October 1989, in Writ Petition No. 17/89. The Supreme Court on 8th February, 1990, while rejecting Special Leave passed order as follows :-


"We are not inclined to interfere with the orders taking over the Management. Hence the Special Leave Petition is dismissed. Mr. Mehta states that the main grievance today is that only part of the school has been taken over as a result of which some of the students are suffering. If that is so the petitioner can approach the High Court."


What is therefore pertinent to note is that once the Supreme Court refused to interfere with the order taking over the management a fervent plea was made on behalf of the respondent Shri Naik before the Supreme Court that only a part of the school at Durbhat has been taken over and since the classes conducted at Adpoi are not being taken over by the Authorized Officer the student community is suffering and in that context the Supreme Court observed that respondent No. 3 Naik can approach the High Court and obtain appropriate direction therefrom.


13.In the meantime another development took place and that was several students who were in the S.S.C. Class at Adpoi (batch of 1989-90) filled their forms for the S.S.C. Examination to be conducted in March, 1990, and in the absence of the recognition of the school, the Goa Board of Secondary and Higher Secondary Education refused to accept their forms. Another predicament by which whole of the academic year 1989-90 would have been lost by sufficiently large number of students. Result was on behalf of students Writ Petition No. 40 of 1990 was instituted by Miss. Navita Nani Naik in this Court seeking a mandamus directing the Board to accept the forms signed by the In-charge Head Master Gajanan V. Naik who was conducting classes at Durbhat. It was averred in the petition that as a result of a dispute over the affairs of the school the fact of 39 students and the petitioner was such that they would miss the S.S.C. Examination and loose one full year and in that view of the matter the Division Bench of this Court to which again one of us was a party (Kamat, J.) on 13th February, 1990 on making rule in that petition, interim relief was granted directing the S.S.C. Board to accept the forms countersigned by that Head Master. This Writ Petition No. 40 of 1990 is also being disposed of in terms of the interim order today finally as nothing more survives in that petition.


14.Despite all this there is a sudden volte case staged by the Department and we have the impugned order of 11th June, 1990. Regard being had to the arguments and the backdrop already highlighted, it is advantageous to transcribe that order (Annexure P-16) issued by the Director of Education, who is also the ex-officio Additional Secretary to the Government, which reads as under:-


"Order


Whereas some of the classes of Sharada English High School, Durbhat, run by Shikshan Prasarak Sangh Ponda, herein after called the Management of the School were shifted during the academic year 1988-89 from Durbhat to Adpoi Ponda;


And whereas consequent upon the shifting of some of the classes to Adpoi, the school started functioning at 2 places. Following the intervention of the Government 18 employees out of total 20 admissible employees of the school were functioning at the original premises at Durbhat and the Headmaster and one peon continued to function at new premises;


And whereas Government has reconsidered this peculiar situation and Government is now pleased to resolve the issue with the following arrangement :-



1.The school at Adpoi shall be named as Sharada English High School, Adpoi and it will be managed by the same Society headed by Shri K.B. Naik as per the provisions of Education Rules, 1986 and the same is being permitted by the Government from June, 1990 to run the classes from Std. Vth to Xth consequent to recognition of the said school by the Goa Board as per the Rules.


2.The school at Adpoi shall be eligible for grants from June, 1990 onwards.


3.Sharada English High School at Durbhat shall continue to be under the control of the Government.


4.The surplus staff of Durbhat shall be transferred and absorbed in Sharada English High School, Adpoi w.e.f. the date of such transfer and absorption.


5.After working out the due details of transfer and absorption of the staff, a post of regular Headmaster for a period of 2 years in the first instance shall be sanctioned to the school at Durbhat.


6.The Manager of the Adpoi school shall obtain the recongnition of the S.S.C. Board for Std. VIII, IX and X in 1990-91 as per rules.


Government hereby orders the functioning of the Sharada English High School, Adpoi and Sharada English High School, Durbhat with immediate effect.


This has the concurrence of S.S. dated 11-6-1990.


By Order and in the name of Governor of Goa,


Sd/-

(V.N. Dessai)

Director of Education and Ex-Officio Additional Secretary to Government of Goa."


Apart from infirmities viz. misconception of facts pointed out which ex-facie appear in the Order, this Order has in terms torn as under Sharada English High School, Durbhat, into two schools one at Adpoi and the second at Durbhat, though stated to be managed by the same Sangh, but none-the-less to be headed by Shri K.B. Naik. The new school brought into being at Adpoi is made eligible for grants from June, 1990 onwards but the Sharada English High School at Durbhat to continue under the control and management of the Government. Certain consequential order/directions are made relating to the transfer/absorption of the staff/bifurcation and allotment of teaching staff appointment of regular Head Master for Durbhat, etc. which need not be bothered about at this time. These consequential orders, one dated 19th June, 1990 and the other dated 21st June, 1990 are Exh. P-17 colly.


15.What transpires is that the Order dated 3rd January, 1989, for take over of the management was made in public interest and also in the interest of the student community because some of the classes of the school functioning at Durbhat had been illegally shifted to Adpoi as a result of which breach of peace had occurred and notwithstanding that the order which was confirmed by the Division Bench in Writ Petition No. 17 of 1989 on 6th October, 1989, is now given a go-by and the illegal situation created by respondent No. 3 Naik is not only legalized but what is still more is how does the Government and on what authority creates two schools out of one without any reference to the Sangh, the owner thereof. This is the crux of the controversy in this petition.


16.The first point taken by Mr. Kakodkar, learned Counsel for the petitioners, is that the impugned order dated 11th June, 1990 is based on incorrect and falacious facts and once it discloses ex-facie a misconception of facts that by itself is sufficient to strike down the order. The infirmities per se show non-application of mind by the Director of Education, urges Mr. Kakodkar.


Coming to the impugned Order, it may be noticed that Shikshan Prasarak Sangh, Ponda, has been mentioned in the first recital. In the second recital the infirmity pointed out is that consequent upon the shifting of some of the classes to Adpoi the school started funtioning at two places. In fact, what happened was one division of each of five classes from Vth standard onwards had been shifted to Adpoi and therefore, the reference that the school started functioning at two places is pointed out to be erroneous just as 18 out of 20 of the staff members were functioning at original premises at Adpoi. In the same recital a reference is made as if the original premises were at Adpoi, though the original school is at Durbhat. Insofar as the third recital is concerned, a reference is made that the Government has reconsidered this peculiar situation. Nowhere it is specified as to what is `this peculiar situation' and finally, the Government resolved that the school at Adpoi shall be named as Sharada English High School, Adpoi and it will be managed by the same Society headed by Mr. K.B. Naik and Sharada English High School at Durbhat shall continue to be under the control of the Government. It is now urged that shifting of some of the divisions at Adpoi had become the bone of contention in Writ Petition No. 17 of 1989 but by the impugned order the Government has dismembered the school and divided it into two schools without any authority. The question to ask he asserts (sic) is how can the Government divide the property belonging to a Sangh by saying that the classes or divisions illegally shifted to Adpoi are a separate school with a further declaration that the remaining classes conducted at Durbhat shall be another different school. Apart from the absence of authority and power of the Government he further questions as to who has asked for such bifurcation into two schools. In the absence of request and/or consent from Sangh how could the Director of Education exercise such a power and by a stroke of pen divide one school into two different schools and worst-come-to-worst he says that order smacks of mala fides in as much as the school established pursuant to this order at Adpoi is stated to be managed by the Sangh headed by K.B. Naik and Sharada English High School at Durbhat is continued under the control of the Government. The further question is what happens to the order of the Division Bench of this Court dated 6th October, 1989, in Writ Petition No. 17/89 for the impugned order makes no reference and ominously silent. He now says that the omission of the reference to the order of the High Court is deliberate as otherwise how would the Department justify the impugned order?


17.There is great merit and justification for Mr. Kakodkar to contend that the impugned order suffers from the vice of non-application of mind as the order has proceeded upon wrong assumptions based on incorrect facts. In the first place, there is nothing called Shikshan

Prasarak Sangh, Ponda. In the second, the reference to the original premises of the said school at Adpoi is again incorrect as the reference must be to Durbhat. Thirdly, 18 employees out of 20 of the said school were functioning at Adpoi is equally incorrect as 18 employees out of 20 were functioning at Durbhat, despite shifting. Though it is contended that the assumption in the Order that the Society is headed by K.B. Naik is not only wrong but determined arbitrarily, the fact remains that it is a disputed fact. We will however come to this aspect of the matter a little later when we deal with some other points raised on behalf of the petitioner as also respondents as also while dealing with the point of locus standi. 18.Mr. Bhobe, the learned Government Advocate for the respondents No. 1 and 2, and Mr. Nadkarni the learned Counsel for the respondent No. 3, have however, contended that though the assumptions are wrong that by itself is no ground to strike down the impugned Order. Though we are convinced that the wrong assumptions disclose non-application of mind that by itself need not make us hold that the impugned order is vitiated and therefore liable to be struck down, for the simple reason that if on a short point this order is struck down, the Department may come out with another order correcting factual mistakes, which may only perpetuate injustice. The impugned Order has made a very strong impression in our minds that the same needs to be examined viz. other challenges in the petition, more particularly in the backdrop of the decision of the Division Bench of this Court dated 6th October, 1989, in Writ Petition No. 17 of 1989. 19.In the impugned Order it is adumbrated that the school at Adpoi shall be named as Sharada English High School, Adpoi and the school at Durbhat is to be named Sharada English High School, Durbhat. There is indeed a great justification for Mr. Kakodkar to point out that in reality there was no school whatsoever at Adpoi and Sharada English High School was functioning only at Durbhat. On 6th June, 1988, the respondent No. 3 on his own as President of the Sangh had shifted few divisions of the classes at Adpoi which event had brought about not only discontent and dissatisfaction among the people and members of the Sangh at Durbhat, but had created a law and order situation. As many as 18 members of the staff of the school out of 20 had refused to go to Adpoi and the Adpoi classes were under one teacher who had been earlier Head Master at Durbhat. The question that now required to be answered is how does the Government divide Sharada English High School at Durbhat into two different high schools and what is the authority and power of the Government ? In fact, we have not been shown any provision of law on which the Government can divide a private school, though aided and receiving grant-in-aid into two schools without any reference to the owner who manages and runs a school. 20.A feeble attempt is made by Mr. Nadkarni, counsel for the respondent.