Gyan Mandir Society & Anr. vs Ashok Kumar & Ors.
2009 Latest Caselaw 2701 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
#25

+                          LPA 1307/2007


       GYAN MANDIR SOCIETY & ANR.        ..... Appellants
                    Through Mr.Rohit Choudhry, Advocate

                        versus

       ASHOK KUMAR & ORS.                 ..... Respondents
                    Through Ms. Avnish Ahlawat with Ms. Simran,
                    Ms. Latika Chaudhary and Mr.Saurabh,
                    Advocates for Dte. Of Education
                    Ms.Madhu Tewatia and Mr.Asutosh Lohia with
                    Ms.Sidhi Arora and Ms.Kanika Agnihotri,
                    Advocates for NDMC
                    Mr.Gaurav Duggal, Advocate for UOI

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE MANMOHAN

       1. Whether Reporters of local papers may be allowed to see the
          judgment ?y
       2. To be referred to the Reporter or not ?n
       3. Whether the judgment should be reported in the Digest ?n


                                   ORDER

% 20.07.2009

1. This Letters Patent Appeal is directed against a common

judgment and order dated 20th September, 2007, passed by

the learned single Judge in a batch of writ petitions filed by the

teachers and staff of Gyan Mandir Middle School, Tis January

Lane, New Delhi. The petitioners in the said writ petitions

sought appropriate directions for recall of the recognition

granted to the 'Indian School' run by the first and second

appellants and also for other reliefs. Respondent Nos. 1 to 16

are teachers and staff employed by the Gyan Mandir Middle

(LPA 1307-2007) 1 of 11 School.

2. The first appellant is a registered society and the second

appellant is the Chairman of the said society. The appellant

society started the aided RKK Gyan Mandir Middle School at Tis

January Lane some time in 1967. Later, the Delhi

Administration granted aid to the said school. The school

occupied an area of 0.44 acres of land at Tis January Lane. On

27th August, 1975 this land was temporarily allotted to the

society. It appears that the temporary allotment was to end

since the society had applied for regular allotment of a plot of

land in Sadiq Nagar. It is also seen from the original records of

the Land & Development Office of the Central Government

(L&DO for short) produced before us that the application for

land at Sadiq Nagar was in lieu of the land at Tis January Lane.

The allotment, however, could not be finalized for quite some

time and apparently a lengthy correspondence took place

between the society and the L&DO. Finally, a perpetual lease

deed was executed between the society and the L&DO on 29th

October, 1996 whereby 2.284 acres of land at Sadiq Nagar was

demised on leasehold basis in favour of the society. Letter

dated 16th May, 2006 issued by the Deputy Land and

Development Officer to General Manager, Gyan Mandir Society

also shows that the society was allotted 2.284 acres of land in

Sadiq Nagar in lieu of the 0.44 acres of land at Tis January

Lane.

3. The temporary allotment at Tis January Lane ended on 31 st

(LPA 1307-2007) 2 of 11 March, 1997. A plot of land in Sadiq Nagar had been allotted

to the appellant society and it was asked to handover

possession of the land at Tis January Lane. Since the school

was catering to the needs of about 500 students and

employed several teachers, practical difficulties were

encountered in handing over the site. The L&DO, conscious of

the situation, held consultation with the society and the New

Delhi Municipal Committee (NDMC). An offer was made to the

NDMC through letter dated 27th November, 2001 that the

school should be taken over by it on "as is where is basis" and

allotment letter to the said effect was issued on 15th April,

2002 by the L&DO. It appears that a meeting was also

convened by the Chief Minister of NCT of Delhi on 27th

February, 2003 where both the NDMC and the Additional

Director of L&DO were asked to obtain entire details pertaining

to the said school so that taking over of the school can be

considered. Thereafter L&DO called upon the appellant to

hand over physical possession of the school to the L&DO and

accordingly possession was handed over to L&DO on 8th March,

2006. The L&DO in turn handed over physical possession of

the school building on 8th March, 2006 itself to NDMC.

4. In the meantime, the first and second appellants sought

permission to start a senior secondary school at Sadiq Nagar in

2002. Local authorities i.e. DDA and Municipal Corporation of

Delhi denied the request on the ground that the plot size was

inadequate and that the land allotted was for the purpose of a

(LPA 1307-2007) 3 of 11 middle school. A writ petition being WP(C)17889-90/2005 was

filed by the society claiming the relief that it should be

permitted to construct a building for a senior secondary

school. This Court by its judgment and order dated 16th March,

2006 issued a direction to the DDA to upgrade the site in

question as a senior secondary school site. L&DO was

directed to execute a corrigendum or a supplementary deed to

the existing perpetual lease deed dated 29th October, 1996

incorporating therein that the site in question can be used as a

senior secondary school. In the said proceedings the

appellant's counsel made a categorical statement before this

Court that all those students who were studying in the Tis

January Lane school can be accommodated in the school run

by the appellant at Andrews Ganj on freeship basis and if the

fees are charged, the same shall not be in excess of what they

were paying in the Tis January Lane school.

5. It appears that a letter was written on 3rd August, 2006 by the

Director of Education to the Secretary, NDMC wherein it was

mentioned that the Department was sending a proposal for

approval of the Lt. Governor proposing to close down the Gyan

Mandir School and adjustment of the staff under Rule 47 of the

Delhi School Education Rules, 1974 (hereafter referred to as

the Rules) and of the children in the neighbouring NDMC

schools. Admittedly no such proposal was sent to the Lt.

Governor as the land in question at Sadiq Nagar was allotted in

lieu of Tis January Lane land. The proposal was therefore

(LPA 1307-2007) 4 of 11 rejected. Surprisingly however, the society took the stand

that handing over of the land in 2006 had the practical effect

of closure of the school though formal orders had not been

issued under Rule 46 of the Rules. It was contended by the

society that the allotment at Tis January Lane was temporary

and the society had to surrender it upon allotment of the

regular plot at Sadiq Nagar; therefore it committed no

irregularity in expansion of the school and all the requisite

permissions and recognitions were secured from the

concerned authorities including Directorate of Education and

that the school is not liable to absorb the staff who were

working in the Middle School at Tis January Lane.

6. The teachers and staff then moved writ petitions in this Court

contending inter alia that the appellant society cannot disown

the responsibility to manage the aided school and that after

securing allotment in place of the temporary allotment which

was used by the society for over two decades, it cannot be

absolved from its responsibility towards the staff and the

students who had sustained the school all this while. It was

contended that having managed the aided school for all these

years, the appellant society is duty bound to assimilate the

teachers, staff and the students in the new school i.e the

Indian School at Sadiq Nagar. Reliance was placed on Rule 46

of the Rules which mandates that no managing committee

shall close down a recognised school, not being an unaided

minority school, or an existing class in such school without

(LPA 1307-2007) 5 of 11 giving full justification and without prior approval of the

Director, who shall, before giving such an approval, consult the

Advisory Board. It was pointed out that no such permission

was obtained by the management for closure of the school

and, therefore, the petitioners are entitled to be absorbed in

the new school at Sadiq Nagar. A notice of the writ petition

was also issued to NDMC, which was impleaded as a party

respondent to these proceedings. It took the stand that though

it has no objection to the taking over of infrastructure and

management of the school, but the cadre structure in its

institutions does not visualize absorption of teachers and staff.

It was stated that they were employed without recourse to the

procedure adopted by the NDMC for recruitment of its

teachers and, therefore, their assimilation in an NDMC

management would not be possible.

7. Learned single Judge came to the conclusion that there was a

systematic attempt by the society to wriggle out of its

responsibilities. It secured a temporary allotment and used it

for setting up an aided school. Having gained from the

experience, it used the regular allotment, made in lieu of the

temporary allotment of the Tis January Lane plot, to set up a

school. All the while it made no attempt to absorb the

teachers or the students. The learned single Judge rejected

the submission of the society that the GNCT of Delhi should

apply Rule 47 and absorb teachers and staff in other aided

institutions. The learned single Judge pointed out that Rule 47

(LPA 1307-2007) 6 of 11 caters to the situations where employees are declared surplus

as a result of closure of the school or classes in a school or

withdrawal of recognition of an aided school. The objective of

the rule is to protect the employment of teachers in such

institutions as it undeniably constitutes a pool of talent and

experience as well as a precious resource for the benefit of the

society. Its scope, however, is limited; it operates only in the

eventuality of closure of a school, or sections of it, or

withdrawal of recognition to an aided school. Neither situation

exists in the present case. No party has asserted that the

GNCT of Delhi ever consented to and approved closure in

accordance with Rule 46. Consequently, Rule 47 has no

application to the facts of the present case.

8. Learned single Judge then proceeded to discuss the legal

obligation of the society to absorb the teachers and staff thus:

"23. The next question is what then is the obligation of the society. Its main argument is that the present pattern of private, unaided education in the "Indian school" pursued by it, does not allow room to absorb the petitioner employees. No rule, regulation or norm was cited in support of this contention. Presumably, it is premised upon some inherent management right. To put it mildly, the argument is astonishing; it is also alarming. Astonishing because the society is saying that though it might be under an obligation to continue teachers, it is choosing not to do so, as it is not convenient to it; alarming because it is unrepentant conscious disregard of a binding norm. To me, there is no doubt that the petitioners who stand before this court had acquired a certain status, as teachers and employees of a government aided school. The character of that school was sought to be changed, into an unaided one, by securing allotment in lieu of the existing temporary allotment of the site at Tis January Lane.

So long as the society continued its obligation,

(LPA 1307-2007) 7 of 11 towards these teachers, there was no difficulty. However, now that it asserts that the aided school has been closed - when it is not so in law - the logical and inevitable consequence has to be that these employees are to necessarily be absorbed in the new institution. Any other conclusion would be contrary to Rule 46; it would place a premium on unlawful behavior. Education, even unaided education, should be inclusive. These teachers and employees before the court are not at fault that the society chose a pattern of education it characterizes as incompatible with their background and experience. They face an uncertain, even, bleak future.

24. The society has stated before this court about its willingness to accommodate the students in the aided school in its unaided school (the Indian School) on freeship basis. In view of my above findings, it can do no different as far as the petitioner Nos. 2 to 16 here are concerned. They are admittedly teachers of an aided school; their status as such has to be preserved and protected, by the management."

9. The learned single Judge, in the light of the aforesaid findings,

directed the appellants to ensure that the teachers and staff

are accommodated appropriately in its unaided school i.e

Indian School, and also to take steps to effectuate their

statement about assimilating all the existing students from the

aided school at Tis January Lane in the new school on freeship

basis. It was further directed that the said students shall not

be required to pay any amount over and above what has been

paid by them all this while and they shall be provided free

transportation to the unaided school and back to Tis January

Lane area as long as they study in the Indian School. A

direction was also issued to the Government of NCT of Delhi to

sanction additional sections, wherever required in the unaided

(LPA 1307-2007) 8 of 11 school to accommodate the students from the aided school as

well as teachers and employees from there. The society was

also directed to pay 5% contribution for 2006 in addition to the

amount of Rs. 1 lac volunteered to be paid by the society.

10. Learned counsel appearing for the appellants has raised before

us only two submissions. The first submission is that the

learned single Judge has erroneously proceeded on the ground

that the land was allotted to the appellant society at Sadiq

Nagar in lieu of land at Tis January Lane and that the said

finding is contrary to the records. The submission is stated

only to be rejected. Counsel for the GNCT of Delhi has placed

on record the entire correspondence between the society and

the L&DO. It is seen that the application for the allotment of

land was made by the society on 15th September, 1969

wherein it was clearly stated that the society is running a

primary school by the name of Gyan Mandir Primary School,

recognised by the Education Department, on the temporary

land allotted to the society. It was further stated in the said

letter that the society proposes to raise the school to higher

secondary level and the society would like to have a

permanent plot of land in the vicinity of NDMC area so that

proper steps for raising the institution and necessary

arrangements be made for the Higher Secondary School. In

fact, letter dated 7th January, 1972 by the Deputy Director of

Education, Delhi, forwarding an application by the society

makes it clear that the society is running a primary and middle

(LPA 1307-2007) 9 of 11 school which is recognised by the Department and that they

would like to run a proper higher secondary school. In the

same letter it has been further mentioned that the school is

serving a public cause and its demand for a pucca building is

quite genuine and that there is no other primary school in the

said area to meet the educational demands of the public. The

Deputy Director recommended that the society may be

allotted a site on concessional rates in accordance with the

Zonal Development Plan of the Aurangazeb Road Area for

construction of a new pucca building so that small children on

the rolls of the school do not suffer the inconveniences of the

tented accommodation. Correspondence thereafter makes it

clear that Sadiq Nagar land was allotted in lieu of Tis January

Lane land and, therefore, it was not a case of a closure of the

school but it was of expansion of the existing school at Sadiq

Nagar premises. The first submission of the learned counsel

therefore has to be rejected.

11. The learned counsel for the appellants then submitted that

since the taking over of the school by NDMC was on 'as is

where is' basis pursuant to the agreement arrived between the

NDMC and L&DO, it is the responsibility of the NDMC to absorb

the staff in the existing school. The learned counsel was,

however, unable to show any legal provision by which the

NDMC can be fastened with the responsibility of absorbing the

teachers and staff who were employed by the appellant

society for the purpose of running the middle school at Tis

(LPA 1307-2007) 10 of 11 January Lane. The teachers were employed in the school of the

society and after shifting of the school to Sadiq Nagar it was

the responsibility of the society to absorb the teachers and

staff in the newly started school in the name "Indian School".

In our opinion, no interference is warranted with the well

considered judgment and order of the learned single Judge.

The appeal is dismissed. The appellant society is directed to

pay costs of the respondents, quantified at Rs.75,000/-, to be

apportioned equally among the Union of India, the

Government of NCT of Delhi and the NDMC.

CHIEF JUSTICE

MANMOHAN, J JULY 20, 2009 "v"

(LPA 1307-2007)                                               11 of 11