Agya Kaur & Ors. vs Govt. Of N.C.T. Of Delhi & Ors.
2010 Latest Caselaw 2698 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Review Petition 13638/2002, CM.No.13639/2002 (for condonation of
delay) and CM.No.13640/2002 (for stay) and W.P.(C) 1651/2002

%                                                  Date of decision: 20th May, 2010

AGYA KAUR & ORS.                                                  ..... Petitioners
                                      Through: Mr. Sarvesh Bisaria and Mr. Prakash
                                               Chandra Sharma, Advocates.

                                              Versus

GOVT. OF N.C.T. OF DELHI & ORS.                ..... Respondents
                  Through: Ms. Sana Ansari for Ms. Zubeda Begum,
                           Advocate for R-1/DOE.
                           Mr. V.K. Tandon and Ms. Parul Sharma,
                           Advocates for R-3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The four petitioners, claiming to be employed with the schools run by

the respondent no.2 Police Families Welfare Society, have instituted this

writ petition impugning the order of termination of their services and

seeking a direction for their reinstatement with backwages and continuity of

service. The writ petition was also accompanied with an application for

interim relief. This Court vide order dated 13th March, 2002, while issuing

notice of the petition, directed that any fresh appointment by the aforesaid

Society shall be subject to further orders in the writ petition. On the next

date i.e. 8th August, 2002 none appeared for the Society aforesaid. This

Court issued Rule in the petition and also allowed the petition. The orders of

termination of services of the petitioners were quashed and the petitioners

were reinstated in service and also held entitled to the same pay scale as was

given by the Society to other similarly situated employees. The Society

thereafter applied for review of the aforesaid order but which Review

Application was also dismissed on 23rd July, 2003. The Society thereafter

preferred an appeal being W.A.586/2003. It was the contention of the

Society before the Division Bench of this Court that the Single Judge in the

order dated 8th August, 2002 while allowing the writ petition had presumed

that the schools being run by the Society were governed by the provisions of

the Delhi School Education Act, 1973 and Rules framed thereunder and

granted relief on the said basis; this was however not correct inasmuch as the

schools of the Society were not recognized schools and thus not covered by

the Delhi School Education Act, 1973 and Rules framed thereunder. The

Division Bench set aside the order of dismissal of the Review Application

and revived the Review Application and directed the same to be heard.

Opportunity was also granted to the Society to file a counter affidavit to the

writ petition. The counter affidavit has since been filed. The Review

Application is still pending.

2. The Society has in its counter affidavit stated that the petitioners were

working as teachers in the crèche/pre-nursery schools being run by it; that

the said Society is not a State and hence no writ petition lies against it; that

its schools are neither receiving any grant from the respondent no.1

Government of NCT of Delhi nor require any recognition from the

Directorate of Education; that for this reason also the remedy of writ petition

is not an appropriate remedy. It is further pleaded in the counter affidavit

that the Society is financed by the funds raised by annual subscriptions and

grant in aid from Delhi Police Amenities Fund; that the Society is not

financed either by Government of NCT of Delhi or by Education

Department and /or any other department/agency of the Government in any

way and is not controlled by any Government agency. With respect to one

of the schools, in which the petitioner no.2 was employed, it is pleaded that

it was closed down due to non availability of children / students to make it

viable and as such services of the petitioner no.2 were not required. With

respect to the other petitioners it was stated that their services were also not

found satisfactory and accordingly their services were dispensed with by

giving one month's notice period salary.

3. The respondent no.1 Government of NCT of Delhi has also filed an

affidavit of the Deputy Director of Education to the effect that the schools in

which the petitioners were employed were not recognized by the Directorate

of Education and thus the Delhi School Education Act, 1973 and Rules

framed thereunder were not applicable thereto.

4. In view of the direction of the Division Bench, the delay in applying

for review is condoned and CM.No.13639/2002 is allowed. The first

question which arises is whether any ground for review has been made out.

The Division Bench in the order dated 23rd March, 2004 while restoring the

Review Application held that in the order dated 8 th August, 2002 the Court

had on its own concluded that the schools in which the petitioners were

employed were governed by the Delhi School Education Act, 1973 and

Rules; that the said conclusion was not based on any discussion or reason;

that since same goes to the root of the matter, the Court ought to have

satisfied itself before granting relief on that basis. Thus, the scope of review

has to be guided by the aforesaid order of the Division Bench. Moreover,

the order sought to be reviewed is in fact more of an ex parte order and the

Division Bench having permitted the filing of the counter affidavit and

having required this Court of review to satisfy itself of the applicability of

the Delhi School Education Act, 1973 and Rules, the said questions have to

be gone into.

5. The counsel for the petitioners, at the outset contends that the School

Act applies to all schools in Delhi. However, the provisions of the School

Act on the basis whereof the order under review was made, apply to

recognized schools only. Admittedly there is nothing to show that the

schools in which the petitioners were employed were recognized schools.

The said fact is further confirmed from the affidavit aforesaid of the Deputy

Director of Education. The premise on which the order dated 8th August,

2002 is based is thus without any basis and the order is entitled to be

recalled/reviewed and is recalled/reviewed. Review Petition No. 13638/2002

is thus also allowed and disposed of.

6. Counsels have also been heard on the merits of the writ petition.

7. It was inquired from the counsel for the petitioners as to how the

remedy of a writ petition is available when the School Act and Rules and/or

the Director of Education are not involved. The counsel contends that the

Society aforesaid is a State and the remedy of writ lies thereagainst. The

position with respect to the Society has however been noticed above in the

counter affidavit and to which there is no rejoinder. The question which

arises is whether the said Society can be said to be a State within the

meaning of Article 12 of the Constitution of India and/or whether a writ

would be maintainable against it. The Society is registered under the

Societies Registration Act, 1860 and has the family members of the Police

Officials as its members and their welfare as its objective. Merely the fact

that the members of the Society are Government servants or family members

of the Government servants would not give the colour of a State to the

Society. The counsel for the petitioners however relies on the judgment

dated 15th September, 1999 of the Division Bench of this Court in WPC

48/1999 titled Dr. Tara Chand Sharma Vs. Lt. Governor of Delhi. The

petitioner in that case was working with the State Council of Education

Research and Training (SCERT) and the question therein also was of

maintainability of a writ petition against SCERT. The writ petition was held

maintainable against SCERT. The counsel for the petitioners contends that

similarly this writ petition is maintainable against the Society which is also

engaged in the field of education as SCERT and which is also financed by

the Government of NCT of Delhi and the Delhi Police.

8. I have gone through the judgment aforesaid of the Division Bench.

SCERT was a creation of the Delhi Administration itself, with the object to

provide better opportunities and facilities in all spheres of education and at

all stages. The Division Bench held SCERT to be not a Department or

adjunct of the Delhi State. However, a writ of mandamus was held to lie

against SCERT for the reason that mandamus was held to lie to compel the

official to carry out the terms and conditions of statute under or by which the

society is constituted or governed and also to companies or corporations to

carry out duties placed on them. It was further held that duty need not be

imposed by the Statute - It is only if the doing of that duty is of a public

function and is having public character and such duty is adjudged in the light

of the positive obligation owed by the authority to the affected party. The

Division Bench found that the regulations framed by SCERT were being

flouted and hence a writ of mandamus was held to lie against SCERT.

However, in the present case no such Rules and Regulations have been cited.

Further the involvement and contribution of SCERT in the field of education

cannot be compared with that of the Society in the present case. The Society

in the present case is stated to be running crèche / pre nursery schools which

are not even recognized or required to be recognized by the Delhi School

Education Act. Thus, it cannot be said that the Society is involved in the

field of education so as to be held to be performing a public function.

9. Faced with the aforesaid, the counsel for the petitioners contends that

though the schools in which the petitioners were employed were pre nursery

and unrecognized but the same Society is also running a recognized school

in the name and style of Delhi Police Public School. Reliance is placed on

Ajay Singh Vs. Delhi Police Public School 117(2005) DLT 516 where a

writ was entertained against the said school. The petitioners have nowhere

on affidavit stated that the Society is also running / managing the Delhi

Police Public School. The counsel for the Society states that he has no

instructions in this regard. The counsel for the petitioners makes a positive

assertion. However, a perusal of the judgment in Ajay Singh (supra) does

not find any reference to the Society running/managing the said school.

During the course of hearing the file of Ajay Singh was requisitioned in the

court. However, no reference to the Society managing the Delhi Police

Pubic School is found therein also. Moreover, a visit to the website of Delhi

Police Public School at http://delhipolicepublicschool.org and to its related

links shows that the said school is not run/managed by the Society

respondent in the present petition but by Police Foundation for Education,

Delhi, also a Society incorporated in 1989. Thus, it cannot be said that the

Delhi Police Public School is being run/managed by the respondent Society

in the present case.

10. A Division Bench of this court recently in Centre for Policy Research

Vs. Brahma Chellaney MANU/DE/0715/2010 has again discussed in detail

the various judgments on the persons/entities against whom writ petition

would lie. Reference therein is made to Dr. Tara Chand Sharma (supra)

also. However, there also it was held that if the rights are purely of a private

character, no mandamus can issue and if the management is a purely private

body with no public duty, mandamus will not lie. The rights sought to be

adjudicated by the petitioners herein are purely private rights and no public

duty is found to be breached. The respondent Society running crèche/pre-

nursery schools is also not found to be performing a public function. No

case for issuance of mandamus to any official of the respondent Society to

carry out the terms of any Rule or Regulation under or by which the society

is constituted or is governed is also made out. No public element is found in

the service conditions including termination and grievances arising

therefrom of the petitioners with the respondent Society.

11. The writ petition having thus been found to be not maintainable, the

same is dismissed with liberty to the petitioners to seek appropriate remedy

in law. The counsel for the petitioners has contended that since the petitions

have remained pending in this Court for the last eight years, the petitioners

may face the bar of limitation in seeking other remedies. The petitioners

would be well advised to invoke the provisions of Section 14 of the

Limitation Act, 1963 in this regard. The fact remains that Rule was issued

and the petition was allowed on 8th August, 2002. Thus, the bona fides of

the petitioners in pursuing the present petition cannot be doubted and I see

no difficulty in the petitioners' availing the benefit of the said provision of

the Limitation Act.

RAJIV SAHAI ENDLAW (JUDGE) 20th May, 2010 M