Mohan Lal Gupta vs D.A.V. College Managing ...
2004 Latest Caselaw 80 Del

JUDGMENT

Vijender Jain, J.

1. It is a writ petition filed for quashing of the order of transfer dated 14.9.2000, inter alia further praying for a writ of prohibition against respondent no.1 i.e. D.A.V College Managing Committee from transferring or disturbing the petitioner from his existing posting till the disposal of the writ petition. Ms. Gita Mittal counsel for the petitioner has contended that order of transfer is in violation of provision of Delhi Education Act and Rules framed there under. It is the case of the petitioner that petitioner is employed with D.A.V. Centenary Public School, Narela a recognised private school run by the respondent from 8th February 1989.

2. Daya Nand Anglo-Vedic College Trust and Management Society i.e. respondent no.1 is a Society registered under the Society Registration Act, 1860 and is running several educational institutions all over India. The Society has a Managing Committee known as the Managing Committee of Daya Nand Anglo-Vedic College Trust and Management Society, New Delhi (hereinafter referred to as 'the Managing Committee'). The Society has one recognised private school at Narela, New Delhi known as D.A.V. Centenary Public School, Narela (hereinafter referred to as 'the Local Managing Committee'). Ms. Mittal has contended that the Local Managing Committee has been constituted as per the Scheme of Management approved by the appropriate authority for the management of the School under the Delhi School Eduction Act, 1973 and the rules framed there under.

3. It is the case of the petitioner that he worked as Post Graduate Teacher in Hans Raj Model School, Punjabi Bagh, New Delhi from 15.7.1974 till 23.2.1985. The said school is being run by the Managing Committee. It is the case of the petitioner that he was interviewed on 1.2.1985 for the post of Principal of D.A. V. Centenary Public School, Rohtak by Selection Committee of Managing Committee and was selected for the said post and he was posted in Rohtak on 24.2.1985 to do the preliminary work for opening a D.A.V. school in Rohtak. It is the petitioner's case that he established a school in Rohtak and served as Principal of said school till 15.2.1989.

4. The Managing Committee i.e. respondent no.1 applied for permission to establish a new school from class 1st to VIIIth at Narela to the Director of Education, Delhi and the essentiality certificate under Rule 44 of the Delhi School Education Rules, 1973 was granted to it by Director of Education. Much reliance has been placed by the petitioner on the said certificate. Thereafter, petitioner was appointed as Principal of the D.A.V. Centenary Public School, Narela, Delhi by transferring him from Rohtak and since then he is working as Principal of that school. It was contended that D.A.V. Centenary Public School, Narela has been recognised as a separate private school by the Director of Education,Delhi and has its own Local Managing Committee and the school is an independently functioning school under the provisions of the Delhi School Education Act, 1973. In support of her contention she has placed reliance on 2nd (1979) II Delhi Shri. L.R. Sharma Vs. Delhi Administration & Ors. and contended that Delhi School Education Act and Rules does not contemplate transfer of employees of one recognised school to another even when the same are run by one society. In this regard Ms. Mittal has relied upon a circular dated 19.4.1982, issued by Director of Education, Delhi. The same is to the following effect:

"However, the teachers and other employees of recognised, aided or unaided, which are opened after the commencement of the said Act and the rules made there under, though run and managed by the same Trust/Society would not be entitled to have the benefit of common seniority. The seniority of such teachers and other employees would be determinable on an individual basis and in no case clubbed with the seniority of teachers and other employees of those schools which were in existence prior to the enforcement of the said Act and the rules made there under, regardless of the fact that the Trust/Society is the same which is running and managing them.

The Law Department, Delhi administration, has also been consulted before issuing these guidelines/instructions."

5. She has cited the case of one Suresh Kumar, Peon in whose case the Director of Education has passed certain directions to respondent no.3. It was further contended that transfer was not to an equivalent post and the same is bad in law and placed reliance on entitled as Vice Chancellor, Lalit Narain Mithila University Vs. Dayanand Jha. It was contended that petitioner was holding the post of Principal in a school imparting education up to 12th standard and he was transferred to be posted as a Head Master in a school imparting education up to 10th standard and the status and responsibilities of these two posts were not same.

6. Ms. Mittal further contended that High Court under Article 226 has wide power to issue any writ, order or direction and has placed reliance on Miss Payal Gupta Vs. Lt. Governor of Delhi & Ors. 1994 (III) AD(Delhi) 1119(DB), Ms. Usha Handa & Ors. Vs. Lt. Governor of Delhi & Ors. , Kuldip Mehta Vs. UOI and Shri Anadi Mukta Sadguru SMVSJM Smark Trust & Ors. Vs. VR. Rudali & Ors. . Controverting the submission of counsel for the respondent that writ petition under Article 226 of the Constitution of India is not maintainable since the petitioner had an alternative remedy of appealing before the Tribunal, it was contended by Ms. Mittal that in terms of Section 8 of Delhi School Education Act, the Tribunal can be approached only in case of dismissal, removal or reduction in rank of an employee. The petitioner's case does not fall in any of the said categories. It was contended that there is no bar to the maintainability of the writ petition under Article 226 of the Constitution of India, if the order passed by the respondent was patently illegal and void and in this regard has placed reliance on Sahdeo Singh Solanki Vs. Government of NCT of Delhi . Ms. Mittal has also contended that Rule 98 of Delhi School Education Rules applies to both aided as well as unaided schools. It was contended that whole of Chapter VIII of Rules applies to the private school whether aided or unaided other than unaided minority school. It was contended that where a provision is meant specifically for aided school the same has been clarified in the provision itself. It was contended that in the absence of express provision of transfer either in the Act or in the rules , the petitioner could not have been transferred and has placed reliance in T.Chandrasekaran Vs. The Committee of Management of Pachaiyappa's Trust & Ors. 1989(I) LLJ 294. It was also contended that petitioner was not working with respondent no.1 i.e. Managing Committee but was working with respondent no.3, i.e. Local Managing Committee and therefore, there was no power with respondent no.1 to transfer the petitioner.

7. It was submitted by Ms. Mittal that it was the Local Managing Committee which was under the supervision and control of the Managing Committee but no power could be exercised over the principal of the Local Managing Committee and the school is a separate entity has even been recognised in the matter of Delhi Abibhavak Mahasangh Vs. Union of India AIR 1999 Delhi 124.

8. It was contended by Ms. Mittal that TMA Pai's case does not help the case of the respondent as the said judgment deals with the right to establish an educational institution and the reasonable restrictions which can be placed by the state in the matter of affiliation and recognition of such institution. She has placed reliance in Om Prakash Rana Vs. Swarup Singh Tomar & Ors. . In para 9 of aforesaid judgment, Supreme Court has observed as under:

"The Scheme under the education Act envisages that the appointment of a principal in relation to a specific college. The appointment is in relation to that college and to no other. Move over, different colleges may be owned by different bodies or organisations so that each Principal serves a different employer. Therefore, on filling the office of a Principal to a college a new contract or employment with a particular employer comes into existence. There is no State level service to which the Principals are appointed. Had been that so, it would have been possible to say that when a Principal is transferred from one college to another involved, no fresh appointment is involved. But when a Principal is appointed in respect of a particular college and is thereafter transferred as a Principal of another college, it can hardly be doubted that a new appointment comes into existence."

9. Reliance was also placed on the decision of Supreme Court in Islamic Academy of Education and Anr. Vs. State of Karnataka & Ors. 2003 (6) SCALE 325, wherein it has been held as under:

"So far as institutions imparting professional education are concerned, having regard to the public interest, they are bound to maintain excellence in standard of education. To that extent, there cannot be any compromise and the State would be entitled to impose restrictions and make regulations both in terms of Article 19(1)(g) and Article 30 of the Constitution of India. The width of the rights and limitations thereof of unaided institutions whether run by a majority or a minority must conform to the maintenance of excellence. With a view to achieve the said goal indisputably the regulations can be made by the State.

The right to administer does not amount to mal-administer and right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions."

10. Ms. Mittal has contended that in the appointment letter appointing the petitioner as Principal nowhere it was stated that his job was transferable or his appointment will be governed by the rules and regulations of the society and even if that be so, the same would be invalid in view of the Delhi School Education Act and the Rules. In support of her contention has placed reliance on entitled as General Officer Commanding-in-Chief and Anr. Vs. Dr. Subhash Chandra Yadav & Anr., P. Rangachary Vs. The State Bank of Hyderabad & Ors. IX 1991 (3) All India Service Law Journal 76, State Bank of India Vs. S. Vijaya Kumar and J.G. Dholkia Vs. Sciendia Steam Navigation Co. . It was contended that the school in Haryana where petitioner has been transferred is governed by Haryana Education Act & the Rules framed there under and no appointment by transfer is permissible under the said Haryana Act and the Rules. It is contended that transfer to a lower post of Headmaster which has lesser eligibility criteria and thus lower in status, the same is not permissible in law. The terms and conditions of service in Haryana are also different from the terms and conditions of service in Delhi. Ms. Mittal has contended that there is no provision in the Delhi School Education Act or the Rules for transferring any employee from one school to another by any management including the management running more than one school. It has been contended that if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and in this connection has cited Sant Ram Sharma Vs. State of Rajasthan , State of Orissa & Ors. Vs. Mamtarani Sahu & Ors. , A.S. Pathania & Ors. Vs. Union of India 1994 (6) SLR 567 (Delhi), M. P. Pandey Vs. Union of India & Ors. 1979 (3) SLR 72 (Delhi) and Bimlesh Tanwar Vs. State of Haryana 2003 III AD (SC) 259.

11. On the other hand, it was contended by Mr. Bansal learned counsel for the respondent that Rule 59 (2) (q) expressly provides that the Local Managing Committee shall be subject to the control and supervision of the Trust or Society by which such school is run and therefore, the respondents have requisite power to transfer the petitioner.

12. Mr. Bansal has contended that respondents have a right to transfer the petitioner on the basis of contract of employment. He has relied on the judgment of Supreme Court in TMA Pai Foundation 2003 SCC 482. Mr. Bansal has contended that initially the petitioner was appointed by Managing Committee, he was transferred by the Managing Committee as a Principal to Rohtak and thereafter he was again transferred from Rohtak to D.A.V.Centenary Public School, Narela as Principal, now he cannot object the same as the contract of service envisaged transfer to be exercised by the Managing Committee keeping in view the requirements of the Managing Committee. Mr. Bansal further contended that the transfer order which is at page 17 of the paper book clearly indicates that petitioner has been transferred as Principal along with present pay scale and admissible allowances, therefore to say that petitioner's status has been lowered is ill-conceived and without any basis. It was contended that before his posting at Narela the petitioner was principal and after his transfer he remains principal and he will enjoy the same status as well as perks as long as he is in service. It was contended that when the petitioner was transferred from Rohtak to Narela, the school at Narela was only up to 8th standard, in spite of this petitioner was retained and continued with status of principal. It was contended that when the petitioner was transferred to Rohtak school, the school was yet to be opened and was in the preliminary stage, his designation as principal continued and he was paid salary and other benefits attached to the post of Principal. Therefore, his position would remain the same and he would be paid all the benefits including the allowances attached to the post of principal in Delhi. The transfer of the petitioner to Rohtak school does not amount to reduction in his rank. It was contended that more than seven hundred schools are run and controlled by D.A.V. College Managing Committee and Management Society and all such schools are affiliated to Central Board of Secondary Education Board and pursuant to this position, the courses taught in all such schools remain the same, so all the schools are similar with each other as regards courses taught in schools. It was contended by Mr. Bansal that in the case of petitioner, deduction of TDS and disbursement of salary is done by Drawing and Disbursement Officers and in all the schools being run and managed by D.A.V. College Managing Committee and Trust, principal of the concerned school is Drawing and Disbursement Officer. The petitioner while working as principal of the school also acted as DDO. It was contended that salary of the principal as well as teachers and staff is drawn from the account of the D.A.V. College Managing Committee which is being maintained at the school under the instructions of the D.A. V. College Managing Committee and the same is drawn only after D.A. V. College Managing Committee issues a cheque in the name of the principal for drawing the said amount towards the salary of principal, teachers and staff from the said account. Mr. Bansal has contended that reliance placed by the counsel for the petitioner to the case of Suresh Kumar who was a peon will not be a precedent, administrative direction was given by the Director of Education and the Managing Committee has complied with the same. However, the administrative directions cannot be a base for claiming a relief under Article 226 of the Constitution of India and cannot become a judicial precedent. Relying upon a decision of Supreme Court in Chandigarh Administration Vs. Jagjit singh , Mr. Bansal has contended that order passed in similar case by the Government Authority can never be a ground for issuing writ. Mr. Bansal has contended that as the Managing Committee is governing more than 700 educational institutions in India and abroad it has constituted Local Management Committee in each institution for managing and running the affairs locally for and on behalf of Managing Committee and Trust. It was contended that petitioner was never appointed by Local Management committee but was appointed by the Managing Committee. The petitioner was appointed at Delhi by the Managing Committee for school at Rohtak where he worked as principal. It was further contended that proforma sent by the Managing Committee along with essentiality certificate to the Director of Education has clearly mentioned that Managing Committee can transfer its employee from one place to another and/or from one school to another anywhere in India and the said pro forma was approved by the Director of Education. Mr. Bansal has placed reliance on a decision of Allahabad High Court in Ashok Kumar Chawla Vs. Central Board of Secondary Education and Ors. 1998 LAB I.C. 1706. Paragraph 26 of the said judgment is reproduced below:

"The next contention of the petitioner that the appointing authority of the petitioner shall be treated the School Managing Committee, respondent no.4 and respondent no.2 has no jurisdiction to pass any order of transfer. As discussed above, the petitioner was appointed by respondent no.2 and not by respondent no.4 as at that time the D.A. V. Public School Sahibabad was not affiliated to C.B.S.E. Secondly, any teacher who is appointed as bound by the terms and conditions of the Manging Committee of the Society which runs the Institution. It can take appropriate decision to co-ordinate functioning of the various institutions run by it including transfer of Principal/Teacher from one institution to another institution. The Local Management Committee of the School is to function under the control and guidance of Managing Committee of the Society."

13. Mr. Bansal has contended that writ jurisdiction is not available in case of dispute between employer and employees and contract of personal service cannot be specifically enforced under common law and if writ is entertained it would amount to enforcing contract of personal service. In support of his contention Mr. Bansal has relied upon a decision of this Court in S.C.Sharma Vs. Union of India & Ors. 87 (2000) DLT 810 and 1993 SC 2178.

14. I have given my careful considerations to the arguments advanced by both the counsel for the parties. I may not go into various arguments raised with regard to the applicability of the Delhi School Education Act and the Rules framed there under. There is no dispute that petitioner was appointed by the Managing Committee initially at Delhi. The petitioner was selected by the Managing committee and so appointed as a Principal for a school at Rohtak. The petitioner was again transferred from Rohtak to the school at Narela as principal. The only question is whether the petitioner can be again transferred by the Managing Committee to the school at Haryana. Ms. Mittal has argued that in Haryana it is the Haryana Education Act and the Rules framed there under that shall be applicable. She has also argued that the school in which the petitioner is sought to be transferred is not a senior secondary school. These considerations do not survive as initially when petitioner was selected as principal by the Managing Committee, he was sent to a school in Rohtak which was not a senior secondary school. Even when he was transferred from Rohtak to Narela initially the school at Narela was only a middle school but for all the period petitioner was paid the perks of a principal as was being paid to the principal in the National Capital Territory of Delhi although, petitioner was in Rohtak and on re-transfer he was principal of a middle school at Narela in the first instance. Therefore to say that on transfer of petitioner from Narela to Haryana, petitioner shall be governed by the Act and the rules existed in Haryana is not correct. The petitioner will be governed by the Delhi School Education Act and the Rules framed there under. The only question which has to be answered in this writ petition is whether the petitioner can be transferred again from Narela school to Haryana by the Managing Committee. Main question for determination is who was the appointing authority of the petitioner. It is not disputed that the Managing Committee had appointed the petitioner vide its resolution dated 24.3.85, which is at page 52 of the paper book. The same is as under:

"An extract from the proceedings of a meeting of the O.B.S.C. held on 23.2.1985.

Resolution No. 38.

Resolved that the following proposals of the Organising Secretary, D.A. V. College Managing Committee be accepted and recommended to the D.A. V. College Managing Committee for approval:-

(a) That a D.A.V. Centenary Public School be opened in Rohtak from the commencement of current session. To start with a Kothi would be hired.

(b) that Shri M.L. Gupta, Senior-most P.G.T in Hansraj Model School, Punjabi Bagh, New Delhi be appointed as Principal to start preliminary work in the said school.

(c) that Shri M.L. Sekhri, Dy.Organising Secretary,D.A. V. College Managing Committee be appointed as Manager of the School."

15. The petitioner was appointed as principal by the Managing Committee for a school not in Delhi but for a school which was to be opened in Rohtak. As a matter of fact, as per the interpretation of Delhi School Education Act as has been canvassed before me by the counsel for the petitioner, the appointment of petitioner as principal for a school at Rohtak could not have been made. The appointment of petitioner is to be examined in the context of Managing Committee running more than seven hundred educational institutions like schools and colleges throughout the country and abroad, it has been making all the appointments through the Managing Committee Delhi and if the appointment of the petitioner was made initially for a school at Rohtak by the Managing Committee protecting his pay scale which was applicable in Delhi and the petitioner had voluntarily gone to Rohtak to establish a school which was not initially a senior secondary school, it is too late for the petitioner to say that Managing Committee has nothing to do with the petitioner and his employer was the Local Managing Committee. It is also the admitted case of the parties that the petitioner was appointed as principal of the local school at Narela by the Managing Committee. To my mind initially when petitioner was appointed as a principal from Hans Raj Model School run by the Managing committee to be a principal of a school in Rohtak which was to be started by the Managing Committee his appointment was not in terms of provision of Delhi School Education Act and the Rules framed there under. The petitioner was transferred as principal from Rohtak to the school at Narela and that school at Narela was initially a middle school when petitioner joined in 1989 as a principal and later on that school became senior secondary school. If I agree with the argument of counsel for the petitioner then even the initial appointment of the petitioner was not in accordance with the provisions of Delhi School Education Act and the Rules. The position which emerges is that the petitioner was appointed by the Managing Committee and service of the petitioner was transferable to the schools run by the D.A.V. Managing Committee throughout the country. However, as there is different pay scales in different states, a uniform policy has been adopted by the respondent to give same pay scales to the principals and teachers as are prevalent in Delhi irrespective of difference in pay scales elesewhere. The petitioner had not challenged his transfer from Delhi to Rohtak in 1985 and also not challenged his transfer from Rohtak to Narela in 1989. Next question for determination is whether there is any term of transfer with regard to the service of its employees by the Managing Committee. The provisions of Rule 3.10 of the General Terms and Conditions of service of employees contained in Chapter 3 of the Accounts Manual for the DAV schools is reproduced below:

"The Managing Committee has the right to transfer its employee from the one institution to another, when considered necessary. Such an employee shall be entitled to avail of joining time for preparation and travel to the new post. This will not exceed one week for preparation plus actual number of days required for travel. No joining time shall, however, be admissible if the transfer has been approved at the employee's own request except the time taken in transit."

16. From the bare perusal of the aforementioned provisions respondent no.1 has power under its Rules which are applicable to the petitioner to transfer him from one of its school to another school and same is not contrary to the rules and regulations of the contractual appointment of the petitioner. As a matter of fact, the petitioner is the employee of the Managing Committee and his service condition shall be governed by the rules and regulations of the Managing Committee and the Local Managing Committee has no control over the service condition of the petitioner. Reliance was placed by Ms. Mittal that recruitment terms and conditions of the service of the employees of private schools are to be governed by Rule 96. There is no dispute to that proposition but in the instant case, petitioner was unable to show whether his appointment was made pursuant to Rule 96. As a matter of fact, his initial appointment was made in Delhi as principal to be appointed for a school at Rohtak in Haryana. The respondent/Director of Education in paragraph 3 of letter dated 4.1.89, while issuing essentiality certificate under Section 44 of Delhi School Education Act in relation to Narela School has mentioned that management of the school would get the scheme of management approved from the department immediately. In paragraph 10 of the said letter, respondent/Director of Education has also mentioned that school shall be run under the control of D.A.V. Trust & Management Society, Delhi. Pursuant to the said letter scheme of the Management was sent by the respondent inter alia including clause 3.10 which has been reproduced above. Therefore to say that there was no power to transfer the petitioner is wrong in view of specific provisions made in the rules and regulations of the respondent. In view of the fact that petitioner was appointed as principal for a school in Haryana and he did not challenge either the procedure of his appointment or his transfer at that stage in 1985 and again his re-transfer from Rohtak to Narela in 1989, the petitioner now cannot say that he cannot be transferred. Even in 1985 or in 1989 the provisions under the Delhi School Education Act and the Rules were available to the petitioner. To hold that the Managing Committee has no jurisdiction to pass any order of transfer will be contrary to the transfer already made by the Managing Committee and accepted without any protest by the petitioner. The petitioner is bound by the terms and conditions of the appointment by the Managing Committee of the Society which runs the institution. In a large institutions run by the Managing Committee, transfer can be made by the Managing Committee to coordinate the functions of various institutions. As per the rules, the Local Managing Committee of the school is also to function under the control and guidance of the Managing Committee of the Society. The cases cited by the counsel for the petitioner in the facts and circumstances of this case are not applicable. In TMA Pai's case, Supreme Court held that in case of private unaided educational institutions the authority granting recognition or affiliation can lay down conditions for grant of affiliation but these conditions must pertain broadly to academic and educational matters and welfare of students and teachers but how the private unaided institutions are to run is a matter of administration to be taken care by the management of those institutions. The width of the rights and limitations having regard to the public interest of the state cannot be in the domain of the management of the institutions. Excellence in education and its maintenance cannot be compromised. Therefore, the argument of Ms. Mittal that service of the petitioner was not transferable is incorrect in the peculiar facts and circumstances of the case. If such orders are passed then it will be difficult for the respondent Managing Committee to run over 700 educational institutions in India and abroad. To interfere with the discretion of the Managing Committee in the matter of running the schools in the absence of specific plea of arbitrariness, mala fides this Court will be reluctant to substitute its own opinion with that of Managing Committee while exercising power under Article 226 of the Constitution of India. In the writ petition a vague plea has been taken by the petitioner that refusal by the respondent to abide by the order dated 11.10.2000 passed by the Director of Education is illegal, arbitrary, malafide and unfair. From the perusal of the said order written by Director of Education, it seems that the same is contrary to the rules and service conditions between the petitioner and the Managing Committee. The condition of service which was accepted by the petitioner at the time of his initial appointment cannot be taken to have been abrogated or modified. There is no specific rule under the act or the rules that the terms and conditions already entered between the Managing Committee and the petitioner stand abrogated or modified. The scheme under the Education Act envisages the appointment of a principal in relation to a specific college and the appointment is in relation to that college and to no other that is not the case in the instant case. In view of the aforesaid discussions order dated 11.10.2000 passed by Director of Education cannot stand. The Director of Education has no jurisdiction to pass such order in view of the contract of service between the petitioner and the respondent. Justice is the tolerable accommodation of the conflicting interest of the society. I do not believe there is any royal road to attain such accommodation. The incidence of Suresh Kumar cited by the counsel for the petitioner cannot be a ground for issuance of a writ. In Chandigarh Administration's case (supra), Supreme Court held as under:

"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favor of the petitioner on the plea of discrimination. The order in favor of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favor of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order."

17. In view of the peculiar facts and circumstances of this case the authorities cited by counsel for the petitioner have no applicability to the facts of this case.

18. Net result of the discussion is that writ petition is dismissed with no order as to costs.