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Judgment
As per the below mentioned order, the cap t ioned peti t ion was reserved for judgment alongwith Spec ial Civi l Appl icat ion No. 4556 of 2015. "By judic ial order dated 17.01.2017 fol lowed by the order on administ rat ive side, the f i rs t captioned Special Civi l Appl icat ion No. 4556 of 2016 was ordered to be placed before this court by noti fy ing the same alongwith the Special Civi l Appl i cat ion No. 2855 of 2016. Heard learned advocate Mr. Kunal Shah for the pe ti t ioner in Special Civi l Appl icat ion No. 2855 of 2016, learne d Assistant Government Pleader Mr. Rohan Yagnik for the state aut hori t ies and learned advocate Ms. Mamta Vyas for the respondent No.4; as far as Special Civi l Appl icat ion No. 4556 of 2016 is concerned, submissions of learned advocate Mr. Ishan Patel for the peti t ioners and learned advocate Mr. Kunal Shah for the second respondent were, heard at length in both the peti t ions. Reserved for orders."
1.1 The other peti t ion is being decided by a CA V order separately made.
The present peti t ion is f i led seeking to set aside order dated 04.09.2014 passed by the f i r s t respond ent- the Director of Primary Educat ion. I t further seeks t o set aside the communicat ion dated 14.11.2014, which rejecte d the request of the peti t ioner for reconsiderat ion of her case. The f i r s t impugned order dated 04.09.2014 was an order in appeal by V. R. Shah Smruti Vidhyalay Prathmi k Shala Education Trust - the fourth respondent herein unde r Right of Chi ldren to Free and Compulsory Educat ion Act, 2009. 2.1 The appeal was preferred against order dated 27.06.2015 passed by the Distr i c t Educat ion Off icer , Ahmedabad whereby the Distr i c t Educat ion Off ice r had refused the appl icat ion of the said trust to s tart three classes of standardth 8from June, 2014 on the grou nds stated in the order. The Primary Educat ion Direc tor & the Appel late Authori ty al lowed the appeal on cond it ion of compliance of Right of Chi ldren to Free and Com pulsory Education Rules and other condit ions. Permis sion to commence the 8th standard classes was granted. I t appears that thereaf ter the request cum representa t ion of the peti t ioner dated 26.09.2014 was made by the peti t ioner to reconsider the said decis ion w hich was turned down by the Director of Educat ion as p er the impugned communicat ion dated 14.11.2014.
Advert ing to the minimum necessary facts , the school named V. R. Shah Smruti Vidhyalay Prathmik Shala was run since 1963 through management in form of partnership f i rm of which the peti t ioner was on e of the partners. The school had classes tfhr osmta n5dard tot h 7 standard. Upon coming into force of the Right of Chi ldren to Free and Compulsory Educat ion Act, 2009 and also Gujarat Right To Educat ion Rules, 2012, ther eunder classi f i cat ion of primary sect ion was provid ed for . Standards 1st to t5h became primary level , wher eas standards t6h to t8h came to be treated as upper- prim ary sect ion. One of the other requirements prescr ibe d under the new law was that the school was requi red to be run through management, which should be a body in fo rm of registered trust . Learned advocate for the fourth respondent stated that the trust was formed a nd the management have been converted into a trust . 3.1 I t appears that i t is in l ight of the aforesaid divis ion primary sect ion standards, into primary and upper primary, the permission was appl ied for by the fourth respondent school to startth s8tandard classes. The Distr i c t Education Off icer did not f ind favour with the request on the groundisn ter al itahat one of the partne r of the partnership f i rm had an object ion, that there was only one class forth 6and 7th standards and that in the same bui lding other schools were being run. At this stage, may be noted as an undisputed posi t ion that fourth respondent school is being run in the same bui l ding as housed on the s1t, 2nd and 3rd f loors of the bui lding and as far as the fourth and f i f th f loors are concerne d, another school was being run.
3.2 I t may be mentioned that the legal i ty of cons truct ion of fourth and f i f th f loors of the bui lding was a matter dispute. The order was passed by the com petent author i ty to regular i se the construct ion on pa yment of necessary fees under the Gujarat Regular isat ion of Unauthorised Development Act, 2011, was subjecte d to proceedings by f i l i ng Special Civi l Appl icat ion N o. 4556 2016.
Revert ing to the factual aspects of thi s case, pursuant to the f i l l i ng of this peti t ion, this c ourt by dated 22.04.2015 directed the respondent author i t ies to f i le a report stat ing whether the grounds recorde d by the Distr i c t Education Off icer in the order dated 2 7.06.2014 denying the permission to start tht hset a8ndard class es were correct . Extract ing the relevant part of the said order dated 22.04.2015, "Learned AGP requested for time, therefore, hearing is adjourned, however, with clarification and direction that respondent No.1 shall personally examine the matter and file a report about the building in which the schools are being run and in respect of which request for permission to start new / additional classes. Respondent No.1 shall explain the matter in light of the findings recorded by his order dated 27.6.2014 and on face of such finding by DEO and without having reached to the conclusion that the findings at Sr.Nos.4 and 5 are not incorrect how could the concerned officer have passed the impugned order dated 4.9.2014. Respondent No.1 shall, after personally examining the matter and if required after personal inspection at the site, more particularly with regard to the findings recorded at Sr. Nos.4 and 5 in the order dated 27.6.2014, file a report as to whether the details recorded in the order dated 27.6.2014 are correct or not and if the details are correct, then how did the officer pass the impugned order."
Now, pursuant to the aforesaid order, repor t dated 30.04.2015 was prepared by the Distr i c t Edu cation Off icer . The same was produced on record of the present proceedings alongwith aff idavi t dated 01.05.201 5. The fol lowing uncontroverted factual aspects are stated, (a) There are three classes tfho rst a8ndard amongs t 116 students. I t cannot be therefore sa id that number of classes are inadequate.
(b) In so far as the aspect of four schools being run in the bui lding, three classes are in the mo rning shi and one is in afternoon. Anupam Vidyavihar and V. R. Shah Smruti Aadarsh Prathmik Shala have been running secondary and higher secondary cla sses, whereas V. R. Shah Smrutinutan Aadarsh Ka nya vidyalay, in respect of which the dispute is raised, for primary sect ion of standtah rtdo 5t8h.
(c) Each f loor is properly uti l i sed by the s chool and its utility was examined.
(d) On 16.06.2014, a meeting was convened in presence of the Distr i c t Education Off icer . The schools have resolved thei r issues unanim ously deciding to run the classes in the inte rest of students.
(e) The order impugned in this peti t ion came to be passed after taking into considerat ion the int erests of the students and to see that thei r educat ion is not be hampered.
In the aforesaid view, in view of the repo rt of the Distr i c t Educat ion Off icer submitted pursuant to this court s order dated 22.04.2015, the grounds mentio ned by the Distr i c t Education Off icer in his ord er dated 27.06.2016 whereby he refused to start tht hset a8ndard class to the peti t ioner , stand clear ly fals i f i ed. The gist that after coming into force the Right of Chi ldre n to Free and Compulsory Educat ion Act, 2009, primary and upper primary divis ions were created compris ing of stanstd ards 1 to 5th and standards th 6to t8h respect ively. The peti t ioner school appl ied for opening tho fs ta8ndard class so a s to accord i ts impartat ion of educat ion with such d ivis ion of primary and upper primary. The Distr ic t Education Off icer somehow refused the permission by order d ated 27.06.2015 on untenable grounds. The appe l late author i ty found that in the interests of sttuh dents, 8 standard permission was required to be granted. The appel late author i ty granted the permission on com pliance of the condit ions of the act and the rules. During the pendency of the peti t ion, as noted above, thi s court sol ic i ted report to know about the correctness of the grounds mentioned by the Distr i c t Education Off icer refusing the permission. The said report , as noticed above, also conf i rmed on facts , the merits of the decis ion of the appel late author i ty . 6.1 In the aforesaid facts and circumstances, no ground whatsoever to inter fere in the impugned orders i s made out. The chal lenge in this peti t ion is merit less .
The peti t ionis dismissed. Notice is disch arged. Inter im rel ief , i f any, stands vacated.