Union Of India And Others vs Seth Bhagwan Dass Educational ...
1992 Latest Caselaw 416 Del

JUDGMENT

1. The second appeal is directed against the order dated April 3, 1991 passed by Shri B. L Garg, Senior Sub Judge, Delhi whereby he has dismissed the appeal filed on behalf of the appellants and affirmed the order dated May 19, 1990 passed by Shri Rajesh Kumar, Sub Judge 1st Class, Delhi. The trial court on May 19, 1991 has passed a decree of mandatory injunction in favor of the respondent plaintiff and against appellant No.3 defendant No. 3 directing them to issue a recognition letter to the respondent plaintiff in terms of the application dated August 23, 1989 under the provisions of Delhi School Education Act and Rules within a period of one month from the date of the order for 300 students.

2. Relevant facts leading to the filing of this second appeal are that the respondent which is a society registered under the Societies Registration Act, 1860 applied to the appellant No.3 for recognition of a Nursery Teachers Training School vide application dated August 23, 1989 but the appellant No. 3 did not take any action on the said application within the prescribed period of four months as required u/ S. 4(2) of the Delhi School Education Act (hereinafter referred to as the Act). However, despite service of the notice under S. 80 of the Code of Civil Procedure dated December 26, 1989 served on the appellants, no recognition letter has been issued in favor of the respondent. Hence, the respondent is constrained to file the suit for mandatory injunction with a prayer for directions to the appellants to issue recognition letter to the respondent-society for running the classes of Nursery Teachers Training of at least 300 students.

3. The appellants-defendants, in the written statement, have raised preliminary objections - firstly that the suit is not maintainable under S. 25 of the Act and further it was barred under S. 80 of the Code of Civil Procedure. It was further stated that no cause of action arose in favor of the respondent plaintiff and against the appellants -defendants as the respondent never moved any application to the appellants for grant of recognition. Therefore, the question of taking any action in this regard by the further no Education does not arise and further no question arises for contravention of S.4(2) of the Act. The trial court vide order dated 19th May, 1990 has decreed the suit after holding that the school stood recognised as the application filed by the respondent-plaintiff for the recognition of the school has not been granted within the stipulated period of four months as provided in the Act and, therefore, the school automatically stands recognised and consequently decree for mandatory injunction was passed in favor of the respondent-plaintiff and against the appellant No. 3 defendant No. 3 to issue recognition letter to the respondent in terms of the application dated 23-8-1989 under the provisions of the Delhi School Education Act and Rules within a period of one month from the date of the order for 300 students.

4. Aggrived against the order dated 23-8-1989 defendants-appellants filed an appeal, which was dismissed, vide impugned order dated 3rd April, 1991 passed by Shri B. L. Garg, Senior Sub-Judge, Delhi.

5. Being aggrieved against the appellate order dated 3rd April, 1991, the appellants-defendants preferred the present second appeal before this Court. This appeal was admitted vide order dated 8th April, 1992 and the following substantial question of law was formulated:

"1. Whether S. 4(2) of the Delhi school Education Act can be said to be a deeming provision by which a school would be deemed to have been recognised in case action is not taken by the appropriate authority in taking a decision on the application of a School for recognition within four months of the receipt of such application?

2. Whether Civil Court has jurisdiction to entertain the suit?"

6. Mr. S. K. Mahajan, learned counsel for the appellants, has strenuously urged that there is no automatic recognition of the School in case the application filed before the Directorate of Education is not considered and decision thereon communicated to the applicant within the stipulated period of four months. In fact, the provision of S. 4(2) of the is a directory and not mandatory and non-compliance thereof cannot result in automatic recognition of the school. He has further submitted that no consequences have been provided under S. 4(2) of the Act for non-consideration of the application and communication of decision taken thereon to the applicant within four months from the date of receipt of the application and, therefore, that is all the more reason this provision has to be interpreted as directory and not mandatory. He has relied upon Shri Chet Ram Vashist v. Municipal Corporation of Delhi . In that case, the principal question that arose for consideration was whether the failure of the Standing Committee of the Delhi Municipal Corporation to consider under sub-sec. (3) of S. 313, Delhi Municipal Corporation Act, 1957, an application for sanction to a lay out plan within the period specified in the sub-section result in a "deemed" grant of the sanction? In that case the appellant submitted a written application accompanied by a copy of the sanctioned lay out plan for sanction under S. 313 of the Delhi Municipal Corporation Act, 1957 which was to be considered under S. 313(3) within sixty days after the receipt of the application under sub sec. (1) by the Standing Committee and the Standing Committee was either to accord sanction to the lay-out plan on such conditions as it might think fit or to disallow it or ask for further information. In that case, the argument that the lay-out plan automatically was sanctioned in case it was not considered within sixty days, was repelled by the Supreme Court and it was held that sanction was not deemed to have been accorded. The provisions of the Delhi Municipal Corporation in S. 313 are pari materia with the provisions of S.4 (2) of the Delhi school Education Act which is under consideration in the present case.

7. This contention of Mr. Mahajan, learned counsel for the appellants, seems to be well founded. The Supreme Court in Chet Ram Vashist's case (supra) held that subsec. (3) and the proviso to sub-sec. (5) of S. 313 merely prescribe a standard time within which the Standing Committee is expected to dispose of the matter. It is a standard time which the statute considers to be reasonable. But S. 313 stops short of indicating what will be the result if the Standing Committee fails to deal with the matter within the time. The failure of the Standing Committee to deal with the application within sixty days and that the failure should give rise to a right in the applicant to claim that sanction has been accorded, are two distinct things. The second does not necessarily follow from the first. A right created by legal fiction is ordinarily the product of express legislation. Therefore, if the Standing Committee does not consider the grant of sanction on the application made under sub-sec. (1) of S. 313 within the specified period, the non-compliance will not result in a deemed sanction to the lay-out plan.

8. In the present case also, S. 4(2) no doubt requires Director of Education to entertain and consider an application for recognition of a school and to take a decision thereon within four months from the date of receipt of such an application and such a decision shall also be communicated within the aforementioned period. But it stops short of indicating what will be the result if the Director of Education fails to deal with the matter within that time. A right created by legal fiction is ordinarily the product of express legislation. The legislature, therefore, apparently do not go to the extent that non-consideration of the application and non-communication of the decision taken thereon within the stipulated period of four months will result in automatic recognition of the school.

9. In my opinion the law laid down by the Supreme Court Chet Ram Vashist's, case (supra) supports the contention of the learned counsel for the appellant and it cannot be said that failure on the part of the Directorate of Education to consider the application of the respondent for recognition and to communicate the decision taken thereon to the respondent within four months from the date of the receipt of the application for recognition will result automatic recognition of the School.

10. In P. M. A. Vellappa Chettiar v. S. N. Subrahmaniyam Chetty, AIR 1915 Mad 920 it has been held that where a public officer is directed by a Statute to perform a duty within specified time, the provisions as to time are only directory. In considering whether a statute is imperative, a balance may be struck between the inconvenience of rigidly adhering to, and the inconvenience of sometimes departing from, its terms. In deciding whether a rule is mandatory or directory, the possibility of justice suffering from a too rigid application of the time limit should be taken into account.

11. In Caldow v. Pixell (Common Pleas Division Vol. II 1876-77 40 Vict. 562) the same principle has been laid down. It has been held that the principle is well settled that where a public officer is directed by a Statute to perform a duty within specified time, the provisions as to time are only directory and in considering whether a statute is imperative, a balance may be struck between the inconvenience of rigidly adhering to and the inconvenience of sometimes departing from its terms. In deciding whether a rule is mandatory or directory, the possibility of justice suffering from a too rigid application of the time limit should be taken into account.

12. In Dattatraya Moreshwar v. State of Bombay, , it has been held that it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons Who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.

13. In Haridwar Singh v. Bagun Sumbrui , again, the same principle has been reiterated that where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed.

14. Delhi School Education Act has been enacted for providing for better organisation and development of educational institutions in the Union Territory of Delhi. It is also meant for ensuring security of service of teachers, regulating the terms and conditions of their employment and for changing the character of some of these institutions so that they may not develop and encourage a narrow sectarian outlook amongst the students. S. 3 of the Act has given power to Administrator to regulate education in schools. Under S. 4 the appropriate authority, on an application made to it in the prescribed form, and in the prescribed manner, has been given a power to recognise a school. Relevant portion of S. 4 of the Act is reproduced below:

"4. Recognition of schools- (1) The appropriate authority may, on an application made to it in the prescribed form and in the prescribed manner, recognise any private school:

Provided that no school shall be recognised unless-

(a) it has adequate funds to ensure its financial stability and regular payment of salary and allowances to its employees;

(b) it has duly approved scheme of management as required by S. 5;

(c) it has suitable or adequate accommodation and sanitary facilities having regard, among other factors, to the number, age and sex of the pupils attending it;

(d) it provides for approved courses of study and efficient instruction;

(e) it has teachers with prescribed qualifications; and

(f) it has prescribed facilities for physical education, library service, laboratory work, workshop practice or co-curricular activities.

(2) Every application for recognition of a school be entertained and considered by the appropriate authority and the decision thereon shall be communicated to the applicant within a period of four months from the date of the receipt of the application; and where recognition is not granted, the reasons for not granting such recognition shall also be communicated to the applicant within the said period.

(3) Where recognition to a school is refused, any person aggrieved by such refusal may, within thirty days from the date of communication to him, of such refusal, appeal against such refusal, in the prescribed manner, to the prescribed authority and the decision of the prescribed authority thereon shall be final:

Provided that the prescribed authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of thirty days, extend, for reasons to be recorded by it in writing, the said period by a further period of sixty days.

15. Section 4(l) provides for certain conditions with a view to have better organisation and development of educational institutions. In case, the facilities as contemplated under S. 4(l) of the Act are not provided for in the Educational Institutions and the conditions stipulated therein are not fulfillled, this will result in haphazard growth of schools without proper infra-structure of imparting, planned and organized education to the students and ultimately the students will suffer and will cause lot of general inconvenience and injustice to the persons who have no control over the actions of the Director who is entrusted with this power of recognition. In such a situation the object of the Act for providing better organisation and development of education shall be defeated.

16. It goes without saying that the Director is a public officer and entrusted with a public duty to discharge under S. 4(2) of the Act. Provision as regards time is directory and meant only as a guidance for the Director of Education. S. 4(2) will, therefore, have to be held as directory.

17. Therefore, in the light of the light of the above discussion, in my view the finding of both the Courts below that non-consideration of the application for recognition and non-communication of the decision taken thereon to the applicant within the stipulated period of four months by appellant No. 3 /defendant No. 3 has resulted in automatic recognition of the school is obviously illegal and wrong and, therefore, requires to be set aside.

18. Mr. Rohatgi, learned counsel for the respondent has equally vehemently submitted that when the time is prescribed within which the Director has to consider the application for recognition and communicate the decision taken thereon to the applicant within the stipulated period of four months, although consequences have not been provided for under Section 4(2) of the Act, the consequences are obvious and are writ large on the face of it, that is if such a decision is not taken and communicated to the applicant, this will result in the automatic recognition of the school.

19. Learned counsel for the respondent has relied upon the State of Uttar Pradesh v. Lakshmi Ice Factory, Lucknow, . In that case the Supreme Court has considered Cl. 18 of the Statutory Orders which provides "that the Tribunal or the adjudicator shall hear the dispute and give its or his decision within 180 days (excluding holidays but not annual vacations observed by Courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to be parties to the dispute .... Provided that the State Government may extend the said period from time to time. " In that context, it has been held that:

"It seems to us that the provision in this clause is clearly mandatory. The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to Cl. 18 would be wholly unnecessary. The result therefore is that it is obligatory on the Tribunal to give its decision within 180 days from the date of the reference. A decision given, that is, an award made, beyond this period would be a nullity ......."

In that case the Statutory Orders provided for giving decision within 180 days and it was further provided that the State Government might extend the period from time to time. In other words, unless the State Government extended the time, ceiling was provided in C1. 18 of the statutory Orders that the decision shall be given with in 180 days. In those circumstances this provision was held to be mandatory. In the present case no ceiling has been provided.

20. Learned counsel for the respondent also cites the judgment in Srinath Nayak v. Circle Inspector of Schools, Dhenkanal Circle (1989) 67 CLT 33 wherein the Orissa High Court has held that on a reading of the scheme of R. 4, it appears that the rule for the functionaries to take action for reconstitution of the new Managing Committee for the succeeding term and sub-rule (2) of R. 4 is mandatory in nature. On the failure of opposite party No. 1 to return the proposal to the petitioner-Secretary of the Managing Committee within the prescribed time, it must be deemed that opposite party No. 1 had no objection to the proposal which would be deemed to have been approved automatically in the eye of law. It appears that R. 4 had fixed different periods for the functionaries to take action for reconstitution of the new Managing Committee for the succeeding term and sub-rule (2) of R. 4 is mandatory in nature. The failure of opposite party No. 1 to return the proposal to the petitioner-Secretary of the managing committee within the prescribed time, it must be deemed that opposite party No. 1 had no objection to the proposal which would be deemed to have been approved automatically in the eye of law. Unfortunately R. 4 has not been incorporated in the judgment, with the result I am unable to appreciate the principle laid down by the Orissa High Court. But, even if it is assumed that that rule is para materia with S. 4(2) of the Delhi School Education Act, I am afraid it will not be possible for me to agree with this principle in view of the authoritative pronouncement of the Supreme Court in Shri Chet Ram Vashist v. Municipal Corporation of Delhi and the settled law in this regard.

21. Other cases cited by Mr. Rohatgi, learned counsel for the respondent, are not relevant.

22. Next submission made by the learned counsel for the appellants is that Civil Court has no jurisdiction and relied upon S. 25 of the Act, which reads as under:

"25. Jurisdiction of Civil Courts barred- No Civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person authorised by the Administrator or Director or any other officer or authority appointed or specified by or under this Act is empowered by or under this Act to exercise any power, and no injunction shall be granted by any Civil Court in respect of any thing which is done or intended to be done by or under this Act."

23. I am afraid I am unable to accept this contention of Mr. Mahajan. In Dhulabhai etc. v. State of Madhya Pradesh, the following principles regarding exclusion of jurisdiction of Civil Court have been laid down:

"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

24. Having regard to the various provisions of the Act, no adequate or sufficient remedy has been provided for against the inaction of the Director under S. 4(2) of the Act to do what the Civil Court would normally do in a suit. Moreover, no statutory appeal or revision has been provided for. In the absence of any adequate remedy provided in the Act, in my opinion, in view of the law laid down by the Supreme Court, Civil Court has every jurisdiction to entertain the suit.

25. Mr. Mahajan relied upon Ram Singh v. Gram Panchayat, Mehal Kalan, AIR 1986 SC 219. The case cited by the learned counsel for the appellants is clearly distinguishable as in that case the Jurisdiction of the Civil Court was barred for the reason that the Collector was empowered to hold enquiry into the matter under the Act and the Rules and alternative remedies of appeal were also provided. In other words the adequate remedy had been provided in the Act what the civil Courts would do normally in a suit in those circumstances it was held that the Civil Court has no jurisdiction.

26. Mr. Rohatgi, learned counsel for the respondent, however, strongly defended on another ground that in similar circumstances four schools, namely, Saheed Uddam Singh Public School, Modern Public School, Sandhya Sr. Sec. School and Usha Bal Seva Sadan submitted their applications for recognition but they were not considered and the decision taken thereon was not communicated to the application within the stipulated time. They were considered to have been automatically recognised by the Director of Education and recognition was given later. According to learned counsel, the present respondent is also placed exactly in similar circumstances and, therefore, the respondent should also be granted recognition on that basis otherwise it will result in discrimination and the action of the Director will be discriminatory. He heavily relied upon the statement of the Director of Education dated 30-4-1990 a copy of which has been filed along with the reply in opposition to the appeal filed On behalf of the respondent. Where in he has admitted that as per the Delhi School Education Act, only Directorate of Education is empowered to give recognition within 4 months from the date of the submission of the application of recognition otherwise the recognition will be treated as given. He has further submitted that as per the Act, Directorate of Education has power to reject but within 4 months. According to learned counsel for the respondent, the Director himself has conceded such a situation and, therefore, it does not lie in the mouth of the appellants now to change the stand and to contend that the recognition has not been granted to the respondent.

27. I am afraid I am unable to accept this contention. No doubt the Director of Education has made such a statement as pointed out by Mr. Rohatgi but the concession by the Director of Education on the question of law is not binding on the appellants. I also find that no issue has been framed on this question whether the action of the Director is discriminatory. But assuming such an issue has been framed and the parties have gone on trial even then the action of the appellant cannot be considered discriminatory. In Ramnath Verma v. State of Rajasthan, It has been held that discrimination envisaged under Article 14 is conscious discrimination and a discrimination arising out of oversight is no discrimination at all. The mistake committed by oversight can be rectified.

28. In Eskayef Limited v. Collector of Central Excise it was held that the appellant cannot obtain an exemption of Central Excise duty in disregard of the law by invoking the right to equality before the law and equal protection oil the laws guaranteed under Art. 14. In the present facts and circumstances of the case, in view of the law laid down by the Supreme Court the question of discrimination and protection of Art. 14 of the Constitution cannot be invoked.

29. In the present case, since the recognition to certain schools has been given in disregard of law, the right to equality before the law and equal protection of the laws guaranteed under Art. 14 cannot be invoked. The case cited by the learned counsel is distinguishable.

30. However, Mr. Mahajan, under instructions of the Assistant Director of Education very fairly stated to the Court that they will consider the case of respondent within two weeks from today and in case any discrepancy is found, the same will be intimated to the respondent immediately to enable them to rectify the same and in case the discrepancy is rectified, the appellants will accord the recognition to the respondent.

31. In the light of the discussion above, the appeal is accepted and the orders of the Courts below are set aside, and the suit of the respondent-plaintiff is dismissed.

32. In the circumstances of this case, I make no order as to costs.

33. Appeal allowed.