JUDGMENT
Joshi A.H., J.
1. Writ Petition No. 1165 of 2007 is filed by Citizen Forum Maharashtra through Dr. Ashok Lanjewar. Writ Petition No. 2191 of 2007 is filed by Maharashtra Rajya Prathainik Shikshak Samiti, Amravati, and Writ Petition No. 2367 of 2007 is filed by Maharashtra Purogami Primary Shikshak Samiti, Akola.
2. In Writ Petition No. 1165 of 2007, this Court had issued notice before admission. Notice was waived by the Government Pleader. Affidavit-in-Reply has been filed and the petition is ready for hearing and disposal. In Writ Petition No. 2367 of 2007, which was listed for the first time, however, the main issue being governed by two other petitions, this Court considers it wholly unnecessary to issue notice to the respondents and this judgment would govern this case as well.
In Writ Petition No. 2191 of 2007, learned Assistant Government Pleader had waived service for the respondent Nos. 1 to 3, and this Court had authorized the petitioners to serve intimation of this petition on respondent No. 4. Affidavit-in-Reply has been filed by respondent Nos. 1 to 3. Though respondent No. 4 is impleaded as party in individual capacity, it is seen from the Affidavit-in-Reply as well it is stated by the learned Asstt. Govt. Pleader that the decision, in question, is of Government of Maharashtra and not of the respondent No. 4. In this background, this petition can be heard without serving Rule on respondent No. 4, and this Court can ignore the allegations of personal nature made against the respondent No. 4. Moreover, respondent No. 4 in his official capacity has been served through Govt. Pleader in Writ Petition No. 1165 of 2007.
Therefore, Rule is issued in all the three petitions and it is called for final hearing by consent of parties, since affidavits are already filed. Heard learned Advocates for petitioners and learned Asstt. Govt. Pleader Mrs. Bharti Dangre for the State.
3. All the three petitions challenge the Government decision dated 17th April, 2006 and Government Decision dated 30th April, 2007.
By the decision dated 17th April, 2006, the Government has taken a decision to bring uniformity in the calendar of the schools, primary as well as secondary, in entire Maharashtra, and scheduled the opening of schools on second Monday in June of each year.
By the Government decision dated 30th April, 2007, the Government has modified its decision dated 17th April, 2006 and announced that the schools shall open on 15th June every year with a further direction that as far as the Vidarbha Region is concerned, the instructions in the schools shall be held in the morning session considering the hot summer between 15th to 30th of June.
4. The petitioner in Writ Petition No. 1165 of 2007 had initially filed Writ Petition No. 2824 of 2006 challenging the decision of the Government dated 17th April, 2006. In Writ Petition No. 1165 of 2007, the petitioner has averred in Para 12 that the said Writ Petition No. 2824 of 2006 was heard on 17th April, 2006, where the petitioner withdrew the petition with liberty to make a representation to the respondent No. 1 and thereupon the Court gave a direction to the respondent No. 1 to consider the representation on its own merits and take a decision within four weeks from the date of receipt of representation.
5. The petitioner-Forum in Writ Petition No. 2824 of 2006 then submitted a representation on 19th June, 2006, and urged that the policy of the State to re-open the schools on Second Monday requires to be reconsidered on following grounds
[a] Vidarbha is located on the tropic of cancer which has latitude 23.5 to 22.5 and is closest to the Sun and the temperature ranges between 45-47 degrees Celsius even in June, which factor is gravely detrimental to the health of students, as it results in loss of body fluids, electrolytes and affects the system of human body which maintains the body temperature, resulting into cases of sunstroke;
[b] the climatic condition and geographic factors prevailing in Vidarbha have not been taken into consideration;
[c| In many areas of Vidarbha, there is scarcity of water for drinking and in most of the schools, adequate drinking water facilities are not available;
[d] Most of the schools have tin roofs and there are not provisions for electrical fans or ventilation.
[e] The students have to walk/travel between 3 and 5 kms. to attend the schools, which is hazardous.
[f] Since the schools were re-opened on 12th June, 2006, two students- one from Nagpur and another from Bhandara attending the schools after re-opening, died of sunstroke.
[g] All these factors, in turn, result in violation of fundamental rights of the students of congenial educational atmosphere and right of maintenance of proper health. Insistence for uniformity could not be proper in this situation.
6. According to the petitioner, there was increasing demand of withdrawal of Government decision dated 17th April, 2006, however, no action was taken by the Government, and the petitioner received a reply dated 24th June, 2006 from the Government which is signed by the Deputy Secretary of the Government of Maharashtra. In this reply, it has been informed that:
[a] The version of the petitioner that between 12th and 27th June, 2006, the temperature had ranged between 45 and 47 degree Celsius was not found to be factually correct.
[b] That in view of Government decision dated 18th January, 1995, the power to fix the schedule of hours of primary schools are given to the “Gram Shikshan Samiti.”
[c] The facilities of sanitation, drinking water etc., are made available in all the schools.
[d] Schools in non-tribal areas are located at a distance of 1 km., for every village of population of one hundred and, therefore, Govt., did not accept the possibility that the students were required to walk 3 to 5 kms.
Government, therefore, refused to exclude the schools in Vidarbha Region from the policy decision of the Government.
7. Feeling aggrieved by the Government decision not to recall its decision dated 17th April, 2006, petitioner filed Writ Petition No. 1165 of 2007 in January, 2007 and prayed for quashment of Government decision dated 17th April, 2006. This petition came up for hearing before this Court initially on 22nd March, 2007 when this Court directed notice to respondents. Petition was then listed on 27th April, 2007, when no affidavit was filed. The vacations were at the anvil and the decision, if any, as to re-opening unless changed, the schools had to open on 11th June, 2007 being the first Monday.
8. In the annexures to the petition, said petitioner brought to the notice of Court the temperature records maintained by the Department of Meteorology for various years between 2000 and 2006. It was brought to the notice of Court that the higher temperature in the month of June, 2006 was as follows [First figure is of temperature and later is of date.]:
[a] Nagpur : 40.6 [13], 40.7 [14], 41,4 [15], 42.4 [16], 41.6 [17], 42.7 [18], 41.5 [20], 40.6 [21], 41.2[22], and 40.6 [24].
[b] Amravati: It was 40.2 on 16th. Akola 40.0 [13], 40.4 [15] and 40.0 [20].
[c] Yavatmal : 38.2 [12], 39.8 [13], 39.2 [14]. 39.4 [15], 40.0 [16], 39.0 [17], 38.3 [18]. 39.4 [20], 37.0 [22] and 38.4 [23].
[d] Chandrapur: 40.2 [13], 40.2 [14], 39.8 [15], 41.0 [16], 40.0 [17], 39.8 [18], 38.6 [20], 39.2 [21], and 39.8 [22].
[e] Wardha : 40.3 [12], 42.0 [13], 45.6 [14], 41.9 [15], 42.1 [16], 41.7 [17], 42.3 [18] and 41.1 [20].
Learned Advocate for the petitioner has urged that the effect of higher temperature is worst and adverse in Vidarbha, not barely on the indication of Celsius of mercury in the thermometer, but it depends on duration for which the higher temperature prevails. Therefore, on certain dates in the month of June, though temperature was even below 36 degree Celsius, duration thereof was quite much and it has left severe effect on the human body. Learned Advocate, therefore, urged for interim relief.
9. This Court found that it would not be appropriate to assume that the Government would not be open and willing to consider the points which petitioners wanted to urge. This Court, therefore, passed an order on 27th April, 2007 which reads as follows:
1. The learned AGP for the respondents makes a statement that the meeting of the highly-placed officers of the Education Department along with the Hon’ble Minister concerned is going to be held on 28-4-2007 to re-consider the issue as to the re-schedulement of the opening of the schools, particular in Vidarbha region.
2. Since the issue is of an administrative decision to be reached by the executives, however, based on the matters, which pertained to health and environmental, we hope, expect, and believe that the Government shall not be averse for involving the Department of local Meteorology for adverting to the rise in temperature at various hours during the days in last few years between 1st June to the end of July.
3. We hope and expect that the Medical Experts, who shall be in a position to give advice, owing to their knowledge and experience of dealing in the problems of hazards of heat and sunstroke etc., shall be preferably involved in the decision making process. Their views and expert opinion be secured in advance and placed on record before the high level Committee, before it takes a decision.
4. It does not matter if the meeting is required to be postponed for securing the record of these aspects and the decision is taken thereafter.
5. We find that since the Government has shown open-mindedness for reconsidering the matter, it would be not necessary to pass any order urgently. However, it shall be open to the petitioner to move this Court in the event the decision aggrieves the petitioner.
6. The learned Advocate for the petitioner submits that the petitioner should be permitted to represent in the meeting.
The learned AGP states that the Government is not averse if the petitioner wants to represent in the meeting, the petitioner may himself attend the venue of the meeting tomorrow.
7. S.O. After vacation.
10. The Government held a meeting as scheduled on 28th April, 2007 and thereafter issued Government decision dated 30th April, 2007.
In this Government decision dated 30th April, 2007, we find a recital that the Government has considered the effects of the higher gradient of temperature in Vidarbha Region, and considered that some modalities were necessary to overcome the situation and, therefore, decided that the schools shall re-open for Academic Year 2007-08 from 15th June, 2007, and if 15th June be a public holiday, on the next day, further that in so far as Vidarbha Region is concerned, considering the special situation of higher temperature, the schools shall be held in the morning session between 15th June and 30th June.
11. Two writ petitions, namely Writ Petition Nos. 2191 of 2007 and 2367 of 2007 have been filed by the respective petitioners challenging the earlier Government decision dated 17th April, 2006 as well as Govt. decision dated 30th April, 2007.
12. In addition to the points raised by the petitioner in Writ Petition No. 1165 of 2007, in these two recent petitions, these petitioners have urged additional points, namely:
[a] insistence for uniformity would be alright in so far as the minimum required days of instructions, including examinations etc., however, insistence that the said duration should be spread on one and same calender all over the State of Maharashtra uniformly i.e., as regards days of commencement and closing as well as the days of vacation etc., is not based on any rationale.
[b] Insistence of equality in calendar results in failure on the part of the State to arrive at the rational differentia which the State is bound to undertake in view of geographical and meteorological variety which prevails in different territories in Maharashtra which has a vast length and breadth of over 800 kilometers.
[c] That, barely directing that the schools in Vidarbha shall be held in the morning sessions is sheerly due to being totally oblivious to the student population of most big schools which are run in two shifts.
|d] The Government has been totally oblivious to extreme water scarcity, high humidity, indiscreet and increasing power cut, scant transport facilities and exposure to the Sun which the students will be required while returning home after 12 noon, since, in any case, the spread-over of school hours has to be mandatorily for six hours and in any case not less than four hours.
[e] Diwali holidays, so also many other holidays could be curtailed and there need not be any compromise on count of working days.
[f] As per Rule 52.1 of the Secondary School Code, the uniformity, which is contemplated, is to be within the District, and not all over the State.
[g] Power to fix up the schedule is provided under Section 13[2][g] of the Bombay Primary Education Act and it vests with the District Education Officer, whose power has been overridden by the Government for the fancy of bringing uniformity all over the State, which is like importing an arithmetic equation or geometric equality being totally oblivious to inherent need of discriminating due to inherent variety in the geographic and meteorological facts.
[h] In the meeting held on 28th April, 2007, the views of the petitioners [in Writ Petition No. 1165 of 2007) were not paid any attention, much less due consideration.
[i] Views expressed by Dr. Rathod, Regional Head of Medical Services, were sought only in order to prevent the hazards of higher temperature and his views were not taken on the over all facts and practical aspects of the matters.
[j] This Court’s direction that Medical Practitioner having experience of working in Vidarbha Region, in particular dealing with the cases of sufferance due to high temperature was, in fact, neglected or defeated. Participation of Dr. Rathod was sought by the Government to carry out formal compliance only.
[k] The meeting held on 28th April, 2007 was farcical and in the nature of a formality to comply with wishes or directions of this Court and there was no honest or sincere effort on the part of Government officers to open mindedly receive suggestions and points of objections or study and criticism on the decision taken by the Government.
[l) The Government has in a sophisticated manner and with poised etiquettes simply declined to re-consider.
[m] There are no grounds and reasons coming forward for any change in duly considered policy decision of the Government which is dated 18th May, 1975.
13. Learned Advocate for the petitioner urged that the points involved in the case, namely facts and the law, are so obvious, namely that the State is acting contrary to its proclaimed policy of going back from:
[a] the Government Resolution dated 18th January, 1995;
[b] Rule 52.1 vesting the power to decide the school calendar and Rule 54.2 requiring the school hours to conduct the instructions for six hours and not less than four hours a day during hot summer;
[c] Reserving the power through the Zilla Parishad to regulate with an approval of Education Officer “the hours of instructions and the number of durations of vacations” which would comprehend the calendar under Clause [g] of Sub-section (2) of Section 13.
Therefore, the conduct of State comes under the cloud of arbitrariness.
14. According to the petitioners, the case is one which does not fall within the exceptions where the Courts would decline to interfere on the basis of settled principles of law, namely that judicial review of every Executive decision would not be possible unless the decision is arbitrary and that it would have been more fairer or wiser not scientific or more logical. On the other hand, the decision, in question, is vitiated due to failure to collect and advert to required material, and has been reached making a show of having done all this. According to learned Advocates, therefore, this conduct of the State, therefore, squarely falls within the parameters when Courts would interfere. Learned Advocate had, therefore, placed reliance on the observations contained in (Balco Employees’ Union’ v. Union of India) as noted by the Lordships of Supreme Court in the case of (Federation of Railway Officers’ (Association and Ors. v. Union of India and Ors.) . Learned Advocate also placed reliance for the said purpose on the reported judgment of the Supreme Court in the case of (N.D. Jayal and Anr. v. Union of India) A.I.R. 2004 S.C. 867.
15. All the petitioners, in the result, urged that:
[a] In the decision-making process, i.e., of initially when decision dated 17th April, 2006 was reached as well as when the decision dated 30th April, 2007 was reached, sincere efforts were not made to collect relevant data, and involve the experts in decision-making process was not done. In the result, the decision is rendered subjectively than based on objective data and material on record.
[b] The action of the State Government in failing to give a differential treatment to the student from Vidarbha region in the matter of fixing the date of commencement/opening of the schools results in rendering the decision process arbitrary, unfair to the students whose fundamental right of health and security while enjoying fundamental right of education and duty of State to give a differential treatment amounts to violating the constitutional guarantee of being reasonable, rational and fair which is inherent in Article 14 of Constitution of India.
16. The petitions have been opposed by the State Government by filing Affidavit-in-Re-ply. The tenor of affidavit as well as oral submissions based thereon can be perceived and is summarized as follows:
[a] That, the Government is within its power in regulating the management and administration of school education.
[b] Matter of fixing schedule of schools, calendar etc., is a matter of Executive business of the State, governed by policies, and policy matters of State are not a matter of judicial review for the sake of asking.
[c] The policy of State is based on a laudable object of bringing uniformity in the system of education in the State of Maharashtra which is its ultimate goal for achieving and ensuring excellence in the performance of the schools and all over the State, for removing the disparity and bringing the State on par.
[d] Experts have been consulted and if the provision for adequate water and other preventive arrangements is done, the higher temperature in Vidarbha will not have any adverse effect on the health of students.
17. Relying on the very judgments relied upon by the petitioners and the case of (All India ITDC Workers’ Union and Ors. v. ITDC and Ors.) , learned Assistant Government Pleader urged that it is a case of Executive decision well founded on material which was available before the Government. No fundamental rights of the petitioners or any other person are involved. The Government is keen on uniformity and excellence in education. The Policy is not available for attack on the grounds, whatsoever.
18. This Court has given a peaceful and anxious consideration to the rival contentions. Situation, that emerges, is as follows:
19. Situation, that emerges, is as follows:
[a] The set of Rules in existence for a long duration governing the field are Rule 52.1 of the Secondary School Code and Section 13(2)(g) of the Bombay Primary Education Act which prescribe the powers as to who shall decide the time limit or calendar of opening of the schools in the district concerned.
[b] The Government decision dated 18th January, 1995 was adopted for implementing the National Education Policy which does not, in any manner, mandate uniformity in the matter of calendar. It, on the other hand, prescribes in its very opening para that the Public Holidays and other holidays, vacations etc., shall be so organized that those would need the requirements of local environment and that there shall be due flexibility.
[c] The circumstances, which led to the commitment adopted in Government Resolution dated 18th January, 1995 [Annex-A in Writ Petition No. 2367 of 2007 at page 16] have not undergone any change either at State level or at the national level.
[d] There has been insistence for uniformity on the part of the State without demonstrating exact needs and reasons as to why is the uniformity insisted for and what was that factual matter which warranted rigorous implementation of uniformity in the matter of calendar.
[e] Allegations and arguments objecting uniformity and claiming distinctness and differential treatment in the matter of fixing the calendar for Vidarbha are not based sheerly on a demand found on fancy or caprice or a bare logic, but are based upon the distinctness in the geographical and meteorological fact and practice prevailing over decades.
[f] The Government is oblivious to the fact that the educational atmosphere in all the schools as to school buildings or other thermo-resistant situation is not similar.
[g] The Government does not have, or has at least failed to bring before the Court the exact data, i.e., the population which is catered by two shifts school and as to how this situation is to be met.
[h] The Government has not denied the factual matrix, namely there are large number of schools where the students are required to travel or walk a distance between one to five kilometers for attending the schools and has sheerly denied possibility which is an evasive denial.
[i] The Government assumes that in all schools, there is adequate and fair arrangement of supply of water, first aid and primary assistance required for meeting calamity of sunstroke etc., but does not make positive statement that all these arrangements do factually exist.
[j] While the Government’s denial in its reply dated 26th July, 2006 as well as in Affidavit-in-Reply dated 8th June, 2007 that the claim of the petitioner in Writ Petition No. 1165 of 2007 that the meteorological record reveals that between 12th and 17th June, 2000 temperature between 45 to 47 degrees Celsius was reached is technically correct, however, is not faithful to the spirit, since the temperature nearing 40 Degrees Celsius is shown in the annexures to the writ petition, and it has not been duly met by the State Government.
[k] The Government alone has entire record with it not only as to what was the minimum and maximum temperature as well as what was the exact span of higher temperature, which makes a mark of distinction of the heat in Vidarbha Region. The Government has failed to call for and advert to this data.
20. In the aforesaid background, this Court finds that the decision of the Government in initially arriving at a policy of bringing uniformity and then declining to alter it is based on failure to consider the factual distinction vis-a-vis Vidarbha Region, which was readily available to the Government, was not called for. The process of re-consideration has been shown to have been undertaken without there being any sincere and faithful desire to open mindedly examine the issue. The action of the Government in departing from the existing practice of rationally distinguishing between different territories located in the vast range of 800 kms., between Mumbai to Nagpur, Bhandara or Chandrapur amounts to arbitrary conduct in the matter of abolishing the differential treatment and hence is liable to be regarded and held as arbitrary.
21. Reply given by the Government that it has considered the experts’ opinion is found to be devoid of adequate record and totally lacking in whole -hearted and sincere effort.
22. If the minutes of the meeting dated 28th April, 2007 as well as the affidavit filed in this Court is seen, in fact, Dr. Rathod was consulted “as to how to overcome the difficulties” and not on the propriety and need as to whether the decision needs a change.
The minutes show that the Government acknowledges that there is substance in the grievance about high temperatures. The decision dated 30th April, 2007 changing the initially fixed date of re-opening of schools from 12th June to 15th June and directing that classes will be held in the morning shift reiterates acquiescence to the petitioners’ claim. Yet, rather than making pragmatic amends, the State stuck to its guns, unnecessarily taking the issue to an unrealistic level.
23. It is also not revealing that the experts from Meteorology Department were summoned with records to test the allegations contained in the petitions and representations which were made in the petition and in application. The Officer from Department of Meteorology was summoned to opine that there is a larger variety all over the country in various States and that the natives would adopt to the increased temperature. The whole approach is as if the Government was sitting with a determination not to alter its decision.
24. The failure of the State to advert to and take the opinion of uninvolved medical experts who have experience of working in Vidarbha Region and not just who are designated as Officers working on particular posts in Vidarbha Region as well as failure of the State to collect the meteorological data relating to the effect of duration of excessive heat and hot summer in various places in Vidarbha Region reveals failure to collect material necessary for reaching a decision. All this conduct, according to the petitioners, is falling within the purview of arbitrariness and irrationality.
25. This Court finds that the petitioners’ grievance falls squarely within the purview of the matters where judicial review is permissible. Petitioners have demonstrated and State has failed to counter as it could not go beyond the Minutes of meeting held on 28th April, 2006, nor has produced any other material to demonstrate that Government had at hand the material to meet the allegations and grievances made by the petitioners in earlier re-presentations. The urge for uniformity would be appreciable as far as maintenance of educational standards, duration for instructions etc. is concerned, however, the insistence for spread over of calendar with total disregard to geographical, meteorological heterogeneousness prevailing in the wide span of length and breadth of Maharashtra is, on the face of it, arbitrary and vitiated due to failure to collect and consider the material which, in fact, is available for the State just on call.
26. This Court finds that the Government has not shown open-mindedness in collecting material, putting a finger on a point that at no point of time the temperature was found to be within 45 to 47 Degree Celsius and declining to consider the representations and thereupon failure to bring exact data, and when approached, failure to decline to consider the same, is a conduct which is totally arbitrary and not befitting a Government of people, for the people and by the people. Whether data relating to temperature in various districts of Vidarbha Region which has been noted by this Court in paragraph No. 7 of this judgment was available before the Government, all that the Government was required to do is to ascertain whether the said higher temperature was for a few seconds only and what was that figure of temperature which pervaded for a longer duration and created the Vidarbha Region “hot summer”. This Court is aware that the higher decree of temperature recorded on the basis of the mercury in the thermometer only indicates attaining of highest temperature, but its duration when it remains for longer even an hour or two, indicates its impact on the flora and fauna of which human beings are a part.
27. In this background, the action of the Government totally lacks reasonableness and fairness which plays the role of the foundation of Article 14 of the Constitution of India. In the result, this Court is satisfied that the petitioners have made out a case for making the Rule absolute, however, limited to the extent of the Government decisions impugned, namely 30th April, 2007 and 17th April, 2006, shall not apply to Vidarbha Region. This attitude of the Government answers to any other description of its own conduct being arbitrary and is, therefore, liable to be quashed.
28. This Court is satisfied that this Court cannot hold its hands and feel itself bound by restrictions which are either self-imposed, or are found in the precedents that the Courts ought not, or shall be extremely slow in granting any indulgence and interfering in the matters of policy of Executive of the State. This Court has found, as recorded herein before, that present is a case where question of health and safety of large number of students of tender age is involved. The decision of the State Government has failed to withstand the test of reasonableness. This is so particularly when the State Government has, in spite of all equipments at its disposal, failed to secure the record from the Department of Meteorology and opinion of experts in the Health Services in Vidarbha Region as to the effect of long duration of high temperature prevailing in Vidarbha Region in the second half of June, as was recorded and was seen in past. This issue, therefore, reveals to be an issue of public interest, public health, security and welfare of students. The Courts entertaining judicial review, either High Courts or the Apex Court, have always shown inclination of interference in the matters of policy of State, action or inaction, wherever the questions of fundamental rights, touching the matters of environment, public safety and security, public health have arisen, the Courts have interfered. The compass of Articles 14 and 21 of the Constitution of India, even when read in isolation, stands enlarged and more so when they are read together. Their application to the present case, in certain terms, warrants, and renders the said warrant of interference emergent as well. The protective classification, which was liable to be one – qua – the students of tender age taking education in Vidarbha Region, has not been done by the State. On the other hand, a distinct treatment, which was made available in past, and was prevailing for decades has been abolished by the State without any rational or a reasonable ground being available. Moreover, it is not shown that any such material was available nor is placed on record before this Court. This Court is, therefore, satisfied that present is a fit case of judicial review of the Government decisions, which have led to filing of this petition, ought not be applied to Vidarbha Region.
29. In the result, this Court is of the view that the decision to open the schools uniformly is not liable to be applied to the Vidarbha Region. The Government will have to re-examine the issue and work out a new calendar which will comprise of adjustment or re-schedulement, reduction etc., in the duration of different vacations, curtailment of Public Holidays and deferring of the date of opening up to 1st July or any date proximate thereto.
30. Rule is made absolute with the following order:
[a] The impugned decision dated 30th April, 2007 [Annex-H] pertains to entire Maharashtra, while the grievance represented in the petition pertains only to the schools in Vidarbha Region, the entire Government Resolution need not be struck down, and it shall suffice to issue a direction that the Government’s direction to re-open the schools on 15th June, 2007 shall not apply to Vidarbha Region.
[b] The Government shall be free to take a decision as to fixing up the date of re-opening of schools and calender of the year afresh.
[c] Parties shall bear own cost.