Master Rahul Seth (Minor) vs Mount Carmel School & Another
2009 Latest Caselaw 3450 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No.11301/2009

%                        Date of Decision: 31.08.2009

Master Rahul Seth (Minor)                            .... Petitioner
                    Through Mr.Ashok Agarwal, Advocate

                                 Versus

Mount Carmel School & Another                      .... Respondents
                   Through Mr.K.K.Rai,       Sr.Advocate     with
                             Mr.S.K.Pandey, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 YES
3.    Whether the judgment should be reported in             YES
      the Digest?


ANIL KUMAR, J. (ORAL)

*

The petitioner seeks direction for quashing the impugned letters

dated 27th July, 2009 and 30th July, 2009 and to direct the respondent

no.1 to allow the petitioner to join the classes and direction to

respondent No.2 to take action against the respondent no.1 school. The

petitioner was suspended for one month on account of persistent

violation of dress code of wearing belt on the hips in an indecent

manner. The father of the petitioner was given show cause notice and

asked to give a personal assurance in writing that the disobedience will

not be done by his son. Instead of showing remorse and counseling his

son, the father of the petitioner threatened the Principal of the school

and also called an SI of the police to the school and threatened with

registration of a criminal case leading to indefinite suspension of the

petitioner.

The father of the petitioner, therefore, had filed a suit for

perpetual/permanent injunction under Section 38 of the Specific Relief

Act, 1963 seeking direction to take back the letter of suspension dated

27th July, 2009 and to declare the suspension illegal. The suit of the

plaintiff/petitioner was contested by the school contending inter alia

that school is a prestigious school of Delhi and the petitioner was aware

of the dress/uniform code as the elder brother of the petitioner was also

a student of the school. The school also contended that not only the

petitioner but other children were also issued notices for violating the

dress code/uniform code. On persistent violation of the dress code, the

petitioner was suspended for one month and the father of the petitioner

was asked to give a personal assurance in writing that the disobedience

will not be done by his son. However, the parents of the petitioner opted

for confrontation with the school despite the fact that the act of the

petitioner was not only in violation of the dress code/uniform code but

was an indecent act which persisted despite notices and instead of

appreciating the concern of the school, the father of the petitioner came

back with a Sub Inspector of the Police and threatened the school

Principal with lodging an FIR against the school.

The father of the petitioner contended in the suit filed by him that

the Principal of the school humiliated him by calling a photographer

and he was asked to give a public apology which is denied by the school

in the written statement filed by the school before the Civil Judge.

Rather a recorded CD had been filed by the respondent no.1 to show as

to what had transpired in the office of the Principal.

The petitioner in the suit filed through his father failed to get any

interim relief. The father of the petitioner withdrew the suit on 25th

August, 2009 with liberty to file it before the appropriate forum.

Instead of filing another suit, the petitioner has filed the present

petition which tantamount to forum choosing in the facts and

circumstances. The liberty granted to the petitioner‟s father by the Civil

Court was to file another civil suit. A civil Court does not grant liberty to

file a writ petition under Article 226 of the Constitution of India nor on

the basis of such liberty the petitioner can contend that the writ petition

is maintainable. Learned counsel for the petitioner is unable to explain

as to how the writ petition will be maintainable, after the suit was filed

involving disputed question of facts, which was withdrawn. For

subsequent events after 27th July, 2009 i.e another letter dated 30th

July, 2009 and subsequent suspension for indefinite period of the

petitioner which is alleged to be contrary to Delhi School Education

Rules, either the pending suit on behalf of the petitioner could be

amended or another suit could be filed. Even in the civil suit, the

petitioner can challenge the indefinite suspension on the ground that it

is contrary to the provisions of Delhi School Education Rules. The

dispute is about the persistent indecent behavior of the petitioner and

the support of the parents for such a behavior and the parent instead of

counseling the petitioner, confronting the school authorities and

threatening them. These allegations made by the school are not

admitted by the petitioner. There are different versions in respect to

what transpired between the principal of the school and father of the

petitioner. The school had filed a recorded CD showing what transpired

between the Principal and the father of the petitioner.

There cannot be any doubt that the question as to when a

discretionary jurisdiction is to be exercised or refused to be exercised by

the High Court has to be determined having regard to the facts and

circumstances of each case and no hard-and-fast rule can be laid down.

Normally, the High Court does not entertain writ petitions unless it is

shown that there is something more in a case. To the doctrine of

exhaustion of alternative remedy there are two exceptions. One is when

the proceedings are under a provision of law which is ultra vires which

will entail quashing of same on the ground that the proceedings are

incompetent without a party being obliged to wait until those

proceedings run their full course. The other exception is when an order

is made in violation of principles of natural justice and the proceedings

itself are an abuse of process of law. The plea of the learned counsel for

the petitioner that the expulsion of the petitioner is contrary to Delhi

School Education Rules, prima facie is not acceptable as the petitioner

has not been expelled but has been suspended indefinitely as he has

refused to adhere to the dress code of the school and has persisted with

wearing his belt and trouser in an indecent manner. Suspension

pending indiscipline for whatsoever period cannot be termed as

expulsion and is not contrary to the provisions of Delhi School

Education Rules. The father of the petitioner has also insisted on

alleged rights and has not cared about his duties to counsel his son and

to advise his son to maintain the discipline of the school. The school is

not the extension of the ramp where the students have to show their

dresses and how they are to be worn. A Bench of the Supreme Court in

ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.

((2004) 3 SCC 553 : JT (2003) 10 SC 300 [12]) observed that the High

Court having regard to the facts of the case, has a discretion to

entertain or not to entertain a writ petition and it is the Court that has

imposed upon itself certain restrictions in the exercise of this power.

The Supreme Court had held on page 572 in para 28 as under:

"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The

High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

A civil suit was filed on behalf of the petitioner as the matter

involved substantial disputes of facts, whether the petitioner indulged

in the solitary instance of indecent behavior or the indecent behavior of

the petitioner persisted. The dispute is about the persistent indecent

behavior of the petitioner and the support of the parents for such a

behavior and the parents instead of counseling the petitioner,

confronting the school authorities and threatening them. The dispute is

whether the principal humiliated the father of the petitioner or whether

the father claimed his alleged rights without doing his duties for

maintaining the discipline of the school. In the writ petition also the

father of the petitioner who has filed the petition on behalf of the

petitioner, has neither shown any regret or remorse or that the

petitioner shall be counseled by him against such a behavior. In the

facts and circumstances, it will not be appropriate to invoke the

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India.

In the circumstances, this Court declines to exercise its

jurisdiction under Article 226 of the Constitution of India and the writ

petition is, therefore, dismissed.

August 31, 2009                                       ANIL KUMAR, J.
„Dev‟