Bal Vikas Public School And Anr. vs Govt. Of Nct Of Delhi And Anr.
2003 Latest Caselaw 7 Del

ORDER

Manmohan Sarin, J.

1. Petitioner by this petition seeks a writ of mandamus for upgradation of the school from Secondary level to Senior Secondary level, as applied for vide application dated 15-3-1999. Request of the petitioner was declined by the Deputy Director of Education, vide orders dated 21-3-2000. Petitioner preferred an appeal against the order dated 21-3-2000, which was dismissed by the Lt. Governor of Delhi, vide orders dated 31-5-2000, passed in the appeal No. 26/2000 titled Bal Vikas Public School v. Govt. of NCT of Delhi and Ors.

2. Petitioner seeks a writ of certiorari for

quashing of the aforesaid orders dated 21-3-2000 and 31-5-2000.

3. Facts relevant for the purposes of disposal of the writ petition may be briefly noted :--

(i) Petitioner's school was granted affiliation with the Central Board of Secondary Education vide certificate dated 13-9-1995, issued by CBSE. The school was recognised up to Class X. Petitioner had in his possession 800 sq. mtrs. of land, on which a three storeyed building for the school was constructed. As per the affiliation bye-laws of CBSE, the requirement of land was 750 sq. mtrs of area plus 1 sq. mtr. for every student on the roll for a Senior Secondary School. Petitioner claims that with 293 students enrolled in the petitioner's school, the requirement of land worked out to 1043 sq. mtrs. Petitioner initially had 800 sq. mtrs. and additional land admeasuring 822 sq. mtrs. was acquired, making the total available area as 1622 sq. mtrs. Petitioner thus was fully eligible for being granted upgradation to the Senior Secondary School level.

(ii) On a point of background, it may be noted that the petitioner had initially applied for upgradation on 13-1-1997. The said application for upgradation was rejected on 20-1-1998 due to the availability area not being as per CBSE bye-laws. There were other shortcomings. Playground available was not sufficient/adequate. It was also pointed out that there was no nominee of Directorate of Education in the managing committee. PF facilities were not being provided to staff. Petitioner represented against the said decision vide its communication of 3rd June, 1998 informing of the acquisition of additional land and the availability of a playground. Response to other objections was also given. Petitioner was advised by the Education Officer that since the Directorate had rejected the case, petitioner may avail of the appellate remedies. Petitioner was also advised subsequently vide letter dated 20-8-1998. that the matter had been reviewed at the headquarters and the school may apply for upgradation afresh for the year 1999-2000, when applications are invited by the Department. It is in this background that petitioner had submitted its application on 15-3-1999.

4. The rejection of the petitioner's application vide order dated 21-3-2000, is on the ground that the School has a total plot area admeasuring 1622 sq. meters, while accord-

ing to the new policy of the Directorate of Education, minimum land requirement for the Senior Secondary School with two streams is 3000 sq. meters. The new policy which is referred to in the impugned order dated 21-3-2000, is contained in a letter dated 24-12-1999, written by the Directorate of Education and addressed to the Secretary, CBSE.

5. It is the above letter which is the bone of contention. As per the letter, the Directorate of Education after taking into account. all factors had finalised and the land norms applicable for recognition to private schools henceforth. The land required for a Senior Secondary School for two streams was given as 3,000 sq. meters. The post script to the said letter carries an instruction to various District Education Officers of the Directorate that pending and future cases of recognition should be processed only in accordance with the minimum land requirement mentioned in para 5 of the letter.

6. The question that arises for consideration in the present writ petition is whether the petitioner's school is to be governed by the norms that were in existence at the time when the petitioner applied for upgradation on 15-3-99 or the norms as are laid out in the letter dated 24-12-1999, which have been applied by the Deputy Director of Education, while taking a decision on the petitioner's application on 21-3-2000?

7. Learned counsel for the petitioner has assailed the impugned orders and their reliance on the norms set out in the letter dated 24-12-1999. It is urged that the petitioner's application having been moved on 15-3-1999, the petitioner is entitled to have his application considered on the basis of the norms prevalent at the time of application. Counsel has also referred to Sub-section (2) of Section 4 of the Delhi School Education Act, 1973, where a period of four months is prescribed within which the appropriate authority is enjoined to decide the application for recognition and in case of non-grant of recognition to communicate the reasons for not granting the recognition. Mr. Rahul Gupta submitted that respondents having themselves not disposed of the application, cannot shift the blame to the petitioner's door and then claim that revised norms should be applied. Counsel for the petitioner relied on Vellore Education Trust v. State of Andhra Pradesh, and Anjuman-E-Islam v. State of Karnataka . Learned counsel further submitted that the letter was a mere proposal or at best executive instructions. It could not be treated as statutory rules, which are required to be framed under Section 28 of the Delhi School Education Act, 1973 (hereinafter referred to as 'the Act'). The said instructions have neither the previous approval of Central Government nor published by notification and placed before the Houses of Parliament. They do not have any statutory character. He submitted that in any case, these could not be applied retrospectively.

8. Counsel for the respondent refutes the submissions made and urges that the decision taken by the Directorate of Education and the Lt. Governor, while disposing of the appeals was fully in consonance with law. He submits that the respondents were fully entitled to change the policy and the norms. He places reliance on State of Punjab v. Ram Lubhaya to submit that it is within the province of the Executives to frame a policy and revise the same in public interest.

9. Learned counsel submits that the revised norms were intended to improve the quality of education and provide reasonable accommodation and amenities for sports and extra-curricular activities. Petitioner's application was decided in March, 2000. The revised norms had come into being and have been correctly made applicable.

10. Having perused the pleadings and noted the rival submissions, the admitted position which emerges is that the sole ground on which the petitioner's application for upgradation has been rejected is the petitioner not having the area in terms of the norms given in the letter of 24-11-1999 i.e. 3000 sq. meters. The petitioner had, admittedly, applied on 15-3-1999 even if the earlier applications were to be ignored. Respondents Authorities were required to take a decision within four months in terms of Section 4(2) of the Act. However, they failed to take a decision. Nothing has been placed on record to suggest that the delay in taking decision was on account of any clarification or information required from the petitioner.

11. Undoubtedly, petitioner's school was entitled for upgradation if the decision had been taken within the four month period envisaged in Section 4(2) of the Act. Be it may, the next question to be considered is whether the norms of 24-12-1999, can be made applicable to the petitioner. Petition-

er's application was complete on 15-3-1999. As observed by the Supreme Court in Vellore Educational Trust (supra) while dealing with the case of change in the policy of the Government, the Supreme Court observed in para 10 as under :

"10. The impugned order made by respondent 1 refusing to grant permission solely on the ground of policy of the Government, is in our considered opinion not at all tenable as we have stated hereinbefore that such permission has already been accorded to establish private engineering college to Nagarjuna Education Society on November 15, 1985. Moreover, the application for permission was filed long before the alleged policy in question was adopted by respondent 1".

12. A perusal of the letter in the instant case dated 24-12-1999. shows that it was in response to certain suggestions and norms given by the Central Board of Secondary Education. The letter in para 5 mentions "after taking into account all relevant factors and after thoughtful consideration, the Directorate of Education has finalised the following norms relating to land for recognition of private schools henceforth". The concluding part mentions "I should be grateful if the proposals pending with you for affiliation could be settled as per the norms of land suggested in para (5) above." ft would follow from the foregoing that the norms were intended to be made applicable henceforth. Further, the CBSE was requested to settle the proposal for affiliation as per the norms given in the letter.

13. It is also to be noted that the above letter is at best an executive proposal/instruction and not the statutory rules as are envisaged in Section 28(2) of the Act. There is no legal sanction for making these executive instructions applicable retrospectively. In view of the foregoing discussion, petitioner is entitled to have his application for upgradation considered and decided based on the norms as were applicable in March. 1999 and the norms as are set out in the letter of 24-12-1999, cannot be made applicable to the petitioner whose application was duly submitted in March, 1999. The impugned orders inas muchas they apply the criteria given in the letter of 24-12-1999, cannot be sustained and are hereby quashed. The Authorities are directed to decide the case of the petitioner as per the

norms applicable in March, 1999 within one month from today.

The writ petition is allowed in the above terms.