T.P. Singh Saini & Ors. vs Guru Harkrishan Public School & ...
2011 Latest Caselaw 3173 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+              LETTERS PATENT APPEAL NO. 478/2011

                                        Reserved on: 24th May, 2011
%                                      Date of Decision: 7th July, 2011

T.P. SINGH SAINI & ORS.                   ....Appellants
               Through Mr. Raj Kumar Sherawat, Advocate.

            VERSUS
GURU HARKRISHAN PUBLIC SCHOOL & ORS. ..Respondents

Through Mr. Alok Gupta, Advocate for respondent No. 5.

CORAM:

HON'BLE MR. JUSTICE DIPAK MISRA, THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J.:

The appellants, 79 in number, are aggrieved by the

decision of the learned single Judge dated 20th April, 2011

passed in Writ Petition (Civil) No. 971/2011, T.P. Singh Saini

and Others versus Guru Harkrishan Public School, Fateh

Nagar and Ors. in which the following directions have been

made:

"10. In my opinion, no further direction can be issued to the respondent no.5 Directorate of Education in the present petition. Once it is held that the writ against the respondent no.5 Directorate of Education does not survive, in my opinion

the writ against the respondent no.1 School or Chairman of its Managing Committee or its Principal or against the Delhi Sikh Gurudwara Managing Committee stated to be apex body controlling the said school and impleaded as respondents no.2 to 4, would not lie.

11. I am unable to accept the contention of the counsel for the petitioners that merely because at the time of institution the writ was maintainable for the reason of claiming relief against a party against which the petitioners had a right of relief in writ remedy, would mean that even after the body/authority against whom writ was maintainable has performed its obligation, the other reliefs for which the writ does not lie can also be granted. Upon de-

recognition of the respondent no.1 School by the respondent no.5 Directorate of Education, the only grievance of the petitioners which survives is as to the arrears claimed to be due to them and for which relief in any case ordinarily a writ petition does not lie and the petitioners have alternative remedies for their claims if any of recovery against the respondents no.1 to 4. It is a settled principle of law that a writ remedy is not intended to be a substitute for the ordinary remedies if any of recovery of monies claimed to be due. It does not make any difference whether de- recognition has been effected before the institution of the writ petition or during the pendency of the writ petition.

12. In the circumstances, the date fixed of 6th September, 2011 in the writ petition is cancelled and the writ petition is disposed of with the following directions:-

i. That notwithstanding the disposal of this writ petition, the petitioners shall have

liberty to approach the appropriate Fora in accordance with law for recovery of dues alleged against the respondents no.1 to 4;

ii. In the event of the respondent no.1 School approaching the respondent no.5 Directorate of Education for re-calling of the order of de-recognition, the respondent no.5 Directorate of Education to in this regard issue notice to the petitioners also and to hear the petitioners also and to, if re-calling the order of de-recognition, consider the interests of the petitioners.

No order as to costs."

2. The contention of the appellants is that even if the

respondent No. 1 school has been de-recognised by the

Directorate of Education, the writ Court in exercise of their

extraordinary jurisdiction should have directed the said

respondent to pay arrears of salary as payable pursuant to the

Sixth Pay Commission.

3. The respondent No. 1 school was recognized under the

Delhi School Education Act, 1973 (Act, for short) and the

relevant rules. As per Section 10 of the Act, they are obliged to

pay salary to the teachers at the same scale as payable to

teachers in the Government schools. Pursuant to the

recommendations made by the Sixth Pay Commission, the

Director of Education vide order dated 11th February, 2009 had

directed all recognized schools to release salary and pay

arrears. It is apparent that the respondent No. 1 school did not

pay the enhanced salary and the arrears as stipulated in the

order dated 11th February, 2009 issued by the Director of

Education.

4. As noticed by the learned single Judge, the Director of

Education had issued show cause notice to the respondent No.

1 school and vide their order dated 11th April, 2011 and had

withdrawn the recognition of the respondent No. 1 school under

Section 24(4)(b) of the Act and the relevant rules. The operative

portion of the said order reads as under:-

"AND WHEREAS, vide a „Show Cause Notice‟ No. 15/DE/ACT/821-23 dated:17.02.2011 issued under the provisions of Rule 56 read with Section 24 (4) (b) of Delhi School Education Act & Rules-1973, the Managing Committee of Guru Harkrishan Public School, Fateh Nagar, New Delhi, was given an opportunity to show cause as to why the recognition of the school should not be withdrawn on the ground of violation of the provisions of Section 10 (1) of the Delhi School Education Act-1973. It was clearly specified in the „Show Cause Notice‟ dated 17.02.2011 that if reply to the show cause notice with documentary evidence to the effect that the Managing Committee has complied with the provisions of Section 10(1) of the Delhi School Education Act-1973 is not received within stipulated time of 15 (fifteen) days of the issue of the Show Cause Notice,

action of withdrawal of recognition under the provisions of Section 24 (4) (b) of Delhi School Education Act & Rules, 1973, shall be taken without further notice.

AND WHEREAS, the school authorities of Guru Harkrishan Public School, Fateh Nagar, New Delhi has furnished a reply to the „Show Cause Notice‟ dated 17.02.2011, relevant parts of the reply are reproduced hereunder:

"As a tragedy has happened in our school i.e. sudden collapse of major portion of School Building located in Fateh Nagar, the school had to be temporarily shifted to an alternative site as a safety measure of the students and staff under the orders of our Parent Body i.e. Delhi Sikh Gurdwara Management Committee. As a result of sudden shifting of school to another site, the strength of students in the school had gone UNBELIEVABLY low as parents did not wish to get admission in the school where classes were shifted. These facts were communicated to the Department well in time and the team of officers of Directorate of Education also visited the site where a major portion of school had collapsed.

As a result of sudden decrease in strength of students by more than 500, the main source of income had depleted substantially and the school had to face financial crisis.

The School is likely to be shifted back in the near future in the new building and the Managing Committee is hopeful of getting enough admission in the school

located in Fateh Nagar as we are flooded with enquiries from the parents for admission of their ward in Fateh Nagar School.

The Management of school stands committed to the implementation of orders of VI Pay Commission and Arrears to the Staff as soon as financial position....

AND WHEREAS, on perusal of the reply of Guru Harkrishan Public School, Fateh Nagar, New Delhi, it is crystal clear that the school authorities continue to violate the provisions of Section 10(1) of the Delhi School Education Act-1973 and continue to disobey the lawful orders of the Directorate of Education including implementation of the provisions of 6th Pay Commission despite a clear „Show Cause Notice‟ for withdrawal of recognition. NOW THEREFORE, in the circumstances described above, I, P Krishnamurthy, Director of Education, Delhi hereby order to withdraw the recognition of Guru Harkrishan Public School, Fateh Nagar, New Delhi under the provisions of Section 24(4) of the Delhi School Education Act & Rules, 1973 with immediate effect.

Giving paramount importance to the interests of the students, the present students of Guru Harkrishan Public School, Fateh Nagar, New Delhi shall be granted admission in various Govt. Schools of the Directorate of Education, Delhi as per availability of vacant seats. The Principal, Guru Harkrishan Public School, Fateh Nagar, New Delhi is hereby called upon to submit class wise and gender wise lists of students desirous of seeking admission in the Government and Government Aided Schools in the office of the Deputy Director of Education, District West-A."

5. Once a school has been de-recognised, the Act and the

applicable Rules are not applicable. Directorate of Education

does not have any control over the school. In fact the school

cannot function and operate as is clear from the reply given by

the respondent No. 1 school that they have closed the same

after the wall collapsed and the strength of the students became

low. No doubt in appropriate cases directions for payment of

money can be issued by a writ Court exercising jurisdiction

under Article 226 of the Constitution but in the facts of the

present case and once a school has been de-recognised, we do

not think it will be appropriate for us to issue any such

mandamus in the nature of a money decree and decide the inter

se claim between the appellants and the respondent No. 1. It is

also correct that writ petition under Article 226 can be filed

against private individuals for enforcement of fundamental or

statutory rights and, therefore, private bodies or individuals, who

are not statutory authority or instrumentalities of the State are

covered but in the present case the respondent No. 1 stands de-

recognised and, therefore, the provisions of the Act are no

longer applicable. The question raised is what is the effect of

the circular/order. In these circumstances, the learned single

Judge has refused to exercise the writ jurisdiction and left all

issues open, including the issue whether or not any right had

accrued in favour of the appellants pursuant to the circular/order

issued by the Directorate of Education.

6. In view of the aforesaid reasoning, we do not find any

merit in the present appeal and the same is dismissed. It is,

however, clarified that the observations made by the learned

single Judge and this Court in the present order will not be

construed as observations on merits on the effect of the

circular/order dated 11th February, 2009 relied upon by the

appellants and whether or not under the said circular/order any

right had accrued in favour of the appellants. No costs.

(SANJIV KHANNA) JUDGE

( DIPAK MISRA ) CHIEF JUSTICE JULY 7th , 2011 VKR