Sangeeta & Ors vs Govt. Of Nct Of Delhi & Ors
2013 Latest Caselaw 4402 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

               %                       Judgment reserved on :19.09.2013
                                           Date of Decision: 25.09.2013
+       W.P.(C) 4133/2013
        SANGEETA & ORS                                ..... Petitioner
                         Through: Mr K.L.D.S. Vinober for Mr Ashok
                         Aggarwal, Adv.

                           versus

    GOVT. OF NCT OF DELHI & ORS                 .... Respondent
                   Through: Ms Zubeda Begum and Ms Sana
                   Ansari, Adv for DOE with Ms Madhu,
                   Additional Director
                   Mr Anuj Aggarwal, Adv for Respondents
                   6,7,9,11,12,16,17 and 20
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J.

The only issue involved in this writ petition is as to whether the order dated 31.5.2013 passed by the Director of Education, Delhi, withdrawing recognition of Geeta Ashram Vidya Mandir, Sadar Bazar, Delhi Cantt., New Delhi, which is an unaided recognized private school, from the academic year 2013-2014 is required to be quashed by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

2. The petitioners before this Court are the parents of several children who were studying in the aforesaid school. The management of

the school did not pay salaries of teachers and staff members of the school as revised pursuant to the recommendations made by the Sixth Pay Commission, from the time the revised salaries became applicable. This led to some staff members of the said school filing W.P(C) No.7978/2011 seeking implementation of the recommendation of the Sixth Pay Commission and release of salaries and other benefits as per the said recommendations. The writ petition was disposed of vide order dated 10.5.2012 with the following directions:

"Learned counsel further submits that though the respondent no.1 has no difficulty to take over the administration of respondent no.2, however, that shall be the subject to the discretion of respondent no.1, i.e. the Director of Education as per law. Keeping the facts and circumstances and submissions of the learned counsel appearing on behalf of the parties, I am of considered view that the administration of respondent no.2 will be taken over by the respondent no.1 henceforth."

CM No.19143/2012 for modification of the aforesaid order dated 10.5.2012 was filed by the Directorate of Education. The said application was disposed of vide order dated 4.12.2012 which, inter alia, reads as under:

"3. Vide the instant application, the applicant/ respondent no.1, Directorate of Education seeks modification of the order dated 10.5.2012, whereby respondent no.1 was directed to take over the charge of the school as per law, rules and regulations.

4. In view of the facts and circumstances of the case, I do not deem it fit and proper to modify the aforesaid order dated 10.5.2012, as it has been

specifically clarified in that order that respondent no.1 will take over the charge of school as per rules and regulations.

5. The application stands disposed off accordingly.

6. Needless to state that if in taking over charge of the school, de-recognition is required then respondent no.1 shall be at liberty to do the same as per the law, rules and regulations."

3. Vide order dated 4.12.2012, the Directorate of Education, inter alia, directed as under:

"6. Now therefore in pursuance of Hon'ble Court orders and using powers conferred by Section 4, 10 of the Delhi School Education Act & Rules, 1973 read with Rules 43 & 185, it is hereby directed that:

a) Geeta Ashram, Vidya Mandir, Sadar Bazar, Delhi Cantt, New Delhi, shall pay the salary and entitlements to the staff as per the recommendations of the Sixth Pay Commission and not spend any funds on any unwarranted expenditure.

b) The bank accounts, funds, FDRS etc of the Geeta Ashram Vidya Mandir, Sadar Bazar, Delhi Cantt., New Delhi shall not be operated by the school without the prior permission of the Dy. Director of Education, South West-A until the outcome of the aforesaid court case/ contempt case or till further orders, whichever is earlier.

c) Dy. Director of Education, South West-A shall conduct an inspection of the school under the provisions of Rule 190 of the DSE Rules 1973 and submit a report within two weeks.

4. The inspection carried out by Deputy Director of Education revealed the following irregularities in the management and running of the school:

1. Management is not paying salary and allowances to the staff as per the recommendations of the Sixth Pay Commission despite the directions of the Directorate vide order dated 4.12.2012 and the availability of funds.

2. Refundable security realized from students amounting to Rs.13,45,175/- has not been refunded.

3. Recruitment of Principal is in violation of Rule 96 and Recruitment Rules;

4. The land allotted for setting up the school is occupied by a temple and private houses and the school has been relegated to one corner of the land.

5. There is no separating wall between the school and temple.

6. There is a common entrance for both school and temple.

7. Classrooms do not have double doors or proper ventilation.

5. Vide order dated 31.5.2013, the Directorate of Education withdrew recognition of the school from the academic year 2013-2014 under sub section (6) of section 4 of Delhi School Education Act read with Section 55,50 and 56 of Delhi School Education Rules, 1973. He also directed that the school shall not accept any admission for the session 2013-2014 and Deputy Director Education shall make alternative arrangements in the nearby government school, for the students who were already enrolled during the current session, so that

their studies are not disrupted. Being aggrieved from the said order, the petitioners are before this Court seeking the following reliefs:

(i) issue an appropriate writ, order or direction, thereby calling for the record of the respondent no.1 in regard to the impugned order dated 31.5.2013 (Annexure-A) and after examining the same quash/ set aside the impugned order dated 31.5.2013, passed by the respondent no.1;

(ii) issue an appropriate writ, order or direction, thereby directing the respondent no.1 to reconsider its decision dated 31.5.2013 (Annexure-A) and allow at least the respondent school to run in the academic yare 2013-2014 so as to protect the rights and interests of the students studying in the school.

6. In its counter affidavit, the respondent no.1 - Government of NCT of Delhi has stated that vide show cause notice dated 1.5.2013, the school was directed to show cause as to why recognition be not withdrawn in view of the lapses found during inspection conducted on 14.12.2012 and for not implementing the recommendations of the Sixth Pay Commission. Since the reply furnished by the Managing Society was not found to be satisfactory nor did the school implement the recommendations of the said pay commission, the recognition of the school was withdrawn under section 4 read with section 10 of Delhi School Education Act, vide order dated 31.5.2013 and the children who were studying in the said school were accommodated in the nearby government schools.

7. Section 10 of Delhi School Education Act, 1973, to the extent it is relevant, reads as under:

"10. Salaries of employees- (1) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in school run by the appropriate authority:

Provided that where the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognised private school are less than those of the employees of the corresponding status in the schools run by the appropriate authority, the appropriate authority shall direct, in writing, the managing committee of such bring the same up to the level of those of the employees of the corresponding status in schools run by the appropriate authority:

Provided further that the failure to comply with such direction deemed to be non-compliance with the conditions for continuing recognition of an existing school and the provisions of section 4 shall apply accordingly."

It would thus be seen that the teachers and other staff members working in a recognized school, irrespective of whether it is an aided or unaided school are entitled to scale of pay and allowances etc which are at least equal to the scales of pay and allowances etc paid to the teachers and staff members of the corresponding status in the government schools and failure to pay and allowances at par with those paid to the employees of the Government schools amounts to non-compliance with the conditions subject to which recognition of existing school can continue.

8. Section 4(1),(4) and (6) of Delhi School Education Act, 1973 reads as under:

"(4) Recognition of schools- (1) The appropriate authority may application made to it in the prescribed form and in the prescribed manner, recognise any private school:

Provided that no school shall be recognised unless-

a) it has adequate funds to ensure its financial stability and 1 payment of salary and allowances to its employees;

b) it has a duly approved scheme of managements required by section 5

c) it has suitable or adequate accommodation and sanitary facilities having regard, among other factors, to the number, age and sex of the pupils attending it;

d) it provides for approved courses of study and efficient instruction

e) it has teachers with prescribed qualifications; and

f) it has the prescribed facilities for physical education, library service, laboratory work, workshop practice or co-curricular activities. xxx (4) Where the managing committee of a school obtains recognition by fraud, misrepresentation or suppression of material particulars, or where, after obtaining recognition, the school fails to continue to comply with any of the conditions specified in the proviso to sub-section (1),the authority granting the recognition may, after giving the managing committee of the school a reasonable opportunity of showing cause against the proposed action, withdraw the recognition granted to such school under sub-section (1).

(6) Every existing school shall be deemed to have been recognized under this section and shall be subject to the provisions of this Act and the rules made thereunder:

Provided that where any school does not satisfy any of the conditions specified in the proviso to sub-section (1), the prescribed authority may required the school to satisfy such conditions and such other conditions as may be prescribed, within a specified period and if any such conditions is not satisfied, recognition may be withdrawn from such school.

9. A conjoint reading of Section 10(1) read with sub section (1) and (4) and (6) of Delhi School Education Act, 1973 would show that if the managing committee of a private school fails to pay to its teachers and other staff members, the pay and allowances at par with those being paid to the teachers and other staff members of the government schools, the authority which granted recognition is competent to withdraw such recognition after serving a show cause notice proposing withdrawal of the recognition on the school management.

10. It is an admitted position that the teachers and other staff members post-revised of the pay scales pursuant to the recommendations of the Sixth Pay Commission have not been paid salaries and allowances and other benefits at par with those being paid to their counterparts in government schools and thereby the school management clearly contravened the provisions of section 10 read with section 4(1) and (4) of the Delhi School Education Act. The respondent no.1, therefore, was competent to withdraw recognition accorded to the said school. This is nobody's case that no show cause notice is served upon the school

management before withdrawing recognition. In any case, such a plea can be taken only by a school management and not by the parents of the children who were studying in the said school.

11. During the course of hearing before this Court, the Chairman of the Geeta Ashram Vidya Mandir, Sadar Bazar, Delhi Cantt., New Delhi who was present in the Court undertook to pay salaries to the teachers as per the pay scales recommended by the Sixth Pay Commission, but he was agreeable to pay such salaries and allowances only for the 10 months of the current academic sessions and not from the date the revised salaries and allowances etc were paid to the teachers and other employees in the government schools. Thus, the school management is not agreeable to comply with the provisions of Section 10 of Delhi School Education Act. Therefore, on merit, no exception can be taken to the impugned order dated 31.5.2013 passed by the Director of Education, Delhi.

12. During the Course of arguments, the learned counsel for the petitioners submitted that instead of withdrawing recognition, the management of the school itself should be taken over by the Directorate of Education in terms of the provisions contained in Delhi School Education Act, 1973 and the Rules framed thereunder. In this regard, he referred to the order dated 10.5.2012 passed by this Court in W.P(C) No.1978/2011. This, however, was countered by the learned counsel for the respondent no.1 who submitted that it is not possible for them to acquire each and every school which defaults in payment of salaries and allowances etc to its employees. She further submitted that under Section 20 of the Delhi School Education Act, a discretion vests with the

Administrator of Delhi to take over the schools in appropriate cases and, therefore, no direction for taking over the school can be passed. She also submitted that the government has already taken care of the interests of the students by accommodating them in the nearby government schools. As regards the teachers and other employees of the school, she submitted that since they are private employees, the government cannot be compelled to pay their salaries.

13. Though, section 20 of Delhi School Education Act confers a discretion upon the Administrator to take care of the management of a school which neglects to perform the duties imposed on it by Delhi School Education Act or Rules made thereunder, such taking over cannot initially exceed three years though it can be extended by further period not exceeding one year at a time. But, the total period for which the management is taken over cannot in any case exceed five years. Moreover, the aforesaid section does not apply to minorities school, though Geeta Ashram Vidya Mandir, Sadar Bazar, Delhi Cantt., New Delhi is not a minority school. The provisions of the Act are silent as to what happens if the school management does not come forward to resume the management of the school after the period for which it is taken over by the Administrator expires. However, that situation does not arise in the case before this Court since the Administrator has not at all taken over the management of the school even for the period permitted under the provisions of the Act.

It would also be difficult to dispute that the failure to pay salaries and allowances in terms of Section 10 of Delhi School Education Act is a good ground to take over the management of the school, the same being a statutory duty casts upon the school management by section 10

of the Act. However, considering that there is no prayer in this writ petition for a direction to the administrator of Delhi to take over the management of the school in terms of Section 20 of Delhi School Education Act, and the issue of taking over of the school was addressed by this Court in W.P(C) No. 7978/2011 decided on 10.5.2012, no view with respect to the taking over of the management of the school needs to be taken in this writ petition. If any person is aggrieved on account of non-compliance of the order dated 10.5.2012 passed in W.P(C) No.7978/2011, the available remedy would be to file an appropriate application in the said writ petition.

14. As noted earlier, the issue involved in this writ petition is as to whether the order dated 31.5.2013 withdrawing recognition of the aforesaid school can be said to be illegal or unwarranted so as to justify interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution. Since no legal infirmity in the aforesaid decision has been made out by the petitioners and also considering that in view of the provisions contained in sub section (4) read with sub section (1) of Delhi School Education Act, the payment of salaries and other allowances, at par with the salaries and allowances being paid to government counterparts was a prerequisite condition for continuing recognition of the school, no fault can be found with the impugned order dated 31.5.2013, particularly, when this Court vide order dated 4.12.2012 had already directed that if for taking over charge of the school its de- recognition is required, the respondent no.1 in the said writ petition would be at liberty to do the same as per law, rules and regulations.

15 The learned counsel for the petitioners referred to Smt. Harbhajan Kaur versus The Director of Education (NCT of Delhi and Anr. [W.P(C) No.1053/2011 decided on 5.4.2010] and Children's Education Trust of India versus Union of India [W.P(C) No.6455/2000, decided on 8.8.2005] whereas the learned counsel for the respondents no.1 referred to T.P. Singh Saini and others versus Guru Harkishan Public School Fateh Nagar, New Delhi and others [W.P(C) No.971/2011 decided on 20.4.2011] and Vaishali International School Teachers Welfare Association versus All India Siddharth Int. Educational Society and others [132(2006) Delhi Law Times 237(DB)]. However, none of these decisions applies to the issue involved in this petition.

16. For the reasons stated hereinabove, the writ petition is dismissed. No order as to costs.

SEPTEMBER 25, 2013/rd                                       V.K. JAIN, J.