Delhi High Court

Master Sahib Singh Riat vs Director Of Education & Ors on 1 August, 2014

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 1st August, 2014

+                               LPA 393/2014

       MASTER SAHIB SINGH RIAT                   ..... Appellant
                   Through: Mr. Tanmaya Mehta with Mr. Ankit
                             Agarwal, Advocates.

                                   Versus

    DIRECTOR OF EDUCATION & ORS                ..... Respondents

Through: Mr. Yogesh Saini & Mr. Kartik Jindal, Advs. for Mr. V.K. Tandon, Adv. for DoE.

Mrs. Rekha Palli and Ms. Ankita Patnaik, Advs. for R-3&4.

Mr. Harsh Surana, Adv. for R-5.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 24 th April, 2014 of the

learned Single Judge of this Court of dismissal of W.P.(C) No.3935/2013

preferred by the appellant. The said writ petition was preferred seeking a

mandamus to the respondent, the Managing Committee and the Principal of the

Air Force School, Subroto Park, New Delhi to issue Transfer Certificate to the

petitioner and further seeking a mandamus against the respondents no.1&2

Directorate of Education, Government of NCT of Delhi (GNCTD) to initiate

action against the respondent School for not issuing and withholding the said

Transfer Certificate. Reliefs of compensation and quashing of the demand by

the respondent school of Rs.30,905/- towards fee were also claimed. The

mother of the petitioner, Mrs. Neena Singh, was also impleaded as respondent

no.5 to the petition. It was inter alia the case of the petitioner, a minor suing

through his father Wing Commander Rana Ranjit Singh Riat:

(i) that the appellant / petitioner was a student of Class II-B in the

respondent school in the academic year 2012-13;

(ii) that the appellant / petitioner had applied to the respondent School

vide notice dated 26th December, 2012 for a Transfer Certificate;

(iii) that though the respondent school was under an obligation to issue

the Transfer Certificate within 48 hours of demand but was not

doing so;

(iv) that the appellant / petitioner after leaving the respondent school

had been provisionally admitted in Class-III with Manav Mangal

Smart School, Sector-64 (Phase X), SAS Nagar (Mohali), Punjab

and which School was requiring the appellant / petitioner to

produce the Transfer Certificate;

(v) that the mother of the minor appellant / petitioner i.e. the

respondent no.5 had filed a complaint dated 30th February, 2013

with the Crime against Women Cell, Delhi against the father of the

appellant / petitioner and the respondent school was withholding

the Transfer Certificate in collusion with the mother of the

appellant / petitioner;

(vi) that the respondent school had also raised a demand for tuition fee

inspite of the appellant / petitioner having left the respondent

School;

(vii) that the respondent Directorate of Education, GNCTD inspite of

the complaint had failed to ensure that the respondent School

issues the Transfer Certificate to the appellant / petitioner.

2. The respondent school filed a counter affidavit to the writ petition,

pleading, i) that the appellant / petitioner had already been informed that no

application in the prescribed form bearing the signatures of both the parents of

the appellant / petitioner for issuance of the Transfer Certificate had been

received and for that reason the Transfer Certificate had been withheld; ii) that

the mother of the appellant / petitioner had written to the school not to issue the

Transfer Certificate for any of the three children; and, iii) that the appellant /

petitioner was also in arrears of school fee and without clearance of which, the

Transfer Certificate could not be issued.

3. The respondent no.5 i.e. the mother of the appellant / petitioner has also

filed a counter affidavit, pleading, a) that the father of the minor appellant /

petitioner had shifted the appellant / petitioner to Chandigarh and got him

admitted there, to deprive the appellant / petitioner of the love and care of the

mother and after forcing the mother to leave the house on 12 th October, 2012 in

only two clothes and with a minor daughter; b) that the minor appellant /

petitioner had not been shifted to Chandigarh for the benefit of the petitioner

but only to subject the mother to torture and to deny her the right to meet her

own child; c) that besides the minor appellant / petitioner, the parents of the

minor had two elder children viz. a son and a daughter and while the daughter

was with the mother, both the sons including the appellant / petitioner were

with the father; and, d) that since the appellant / petitioner had been forcibly

shifted / moved to Chandigarh, the mother gave an application to the

respondent school not to issue the Transfer Certificate.

4. The learned Single Judge dismissed the petition observing that since the

minor petitioner / appellant had been unilaterally transferred to a school in

Chandigarh without taking a Transfer Certificate and there was also an issue

with regard to payment of fee, the Court was not inclined to in exercise of

extraordinary jurisdiction entertain the petition. It was also observed that the

appellant / petitioner's father seems to be under an illusion that if he presents a

fait accompali to the Court, the Court would be left with no other option, but to

uphold the same.

5. Notice of the appeal was issued and we have heard the counsel for the

respondent School as well as the counsel for the mother of the minor appellant /

petitioner besides of course the counsel for the appellant / petitioner.

6. Though the counsel for the respondent school during the hearing handed

over a chart showing that an amount of Rs.39,910/- is due from the appellant /

petitioner to the respondent school for the period January, 2013 to March, 2013

and April, 2013 to December, 2013 with a notification that the name of the

minor appellant / petitioner was struck off from the rolls with effect from 1st

January, 2014 but has fairly stated that the respondent School is leaving the

claim of fee to the discretion of this Court.

7. The factual position which has transpired during the hearing is:

(a) that the minor appellant / petitioner who is eight years old and who

in the respondent School studying in Class-II, has since December,

2012 been studying at Chandigarh and is now in Class-IV; his

admission to the Chandigarh school is provisional, subject to

production of Transfer Certificate; if the Transfer Certificate is not

produced, his name may be struck off from the rolls of the

Chandigarh school as well;

(b) that the mother of the minor appellant / petitioner inspite of her

plea of the minor appellant / petitioner having been taken away

forcibly by the father from Delhi to Chandigarh in December,

2012 has till date not instituted any proceedings, for regaining the

custody of the minor appellant / petitioner;

(c) that though the form prescribed by the respondent school for

applying for Transfer Certificate requires the same to be signed by

both the parents but there is no rule of the respondent School

prescribing so;

(d) that the Delhi School Education Act, 1973 and the Delhi School

Education Rules, 1973 also do not contain any provision regarding

the issuance of Transfer Certificate; Rule 139 of the Delhi School

Education Rules, 1973 merely provides that no student who had

previously attended any recognized school shall be admitted to any

aided school unless he produces a Transfer Certificate or School

Leaving Certificate from the school which was last attended by

him;

(e) that while the appellant / petitioner and his elder brother are in the

custody of the father, their sister is in the custody of the mother;

(f) that the marriage of the parents of the appellant / petitioner

subsists and there are no proceedings for dissolution thereof;

(g) that though at the time when the father of the minor appellant /

petitioner moved the minor appellant / petitioner to Chandigarh,

the father, who is an Air Force Officer was not posted at

Chandigarh and only the paternal grandparents were residing at

Chandigarh but the father of the minor appellant / petitioner is now

posted at Chandigarh; and,

(h) that the Rules of the respondent School provide for one month's

notice to be given in writing for withdrawal of a child and in case

of a short notice period, fee for the next month is required to be

paid and no Transfer Certificate is to be issued unless all the

school dues are cleared.

8. Though no fault can be found with the reasoning given by the learned

Single Judge, of the father of the appellant / petitioner after forcibly removing

the minor appellant / petitioner from the custody of the mother being not

entitled as a matter of right to the Transfer Certificate on the ground that the

child already stands removed and admitted to another school, but what prevails

with us, in exercise of appellate jurisdiction, to interfere with the order under

appeal is the fact that the mother of the minor appellant / petitioner, inspite of

such removal being now more than one and a half years old, has not taken any

steps whatsoever for regaining the custody of the minor. We are however not

to be understood as commenting adversely on such conduct of the mother as

we, in exercise of writ jurisdiction, are not concerned with the same. What

further prevails upon us to issue a direction to the respondent School to issue

the Transfer Certificate to the minor appellant / petitioner is the fact that the

consequence of depriving the minor appellant / petitioner of the Transfer

Certificate would not be in the welfare of the appellant / petitioner. The

possibility, of the new School to which the appellant / petitioner has been

provisionally admitted cancelling the said admission and affecting the

education of the minor appellant / petitioner if the Transfer Certificate is not

produced, cannot be ruled out. If the mother of the appellant / petitioner felt

that by blocking the issuance of the Transfer Certificate she will compel the

father to return the minor appellant / petitioner to Delhi, saving the mother the

hardships of litigation, the same has not come true as is evident from the father

having not done so for the last nearly one and a half years. In fact, the

resistance of the mother to the issuance of the Transfer Certificate in these

circumstances reminded us of the judgment of King Solomon who by

announcing his intention to split the baby between two women both claiming to

be the mother, concluded the one who agreed thereto to be not the mother.

9. As far as the claim of the respondent School for fee is concerned, the

rules of the respondent School do not justify the claim for the fees for the full

year from January, 2013 to December, 2013. It was quite evident to the

respondent School from the demand by the father of the minor appellant /

petitioner for Transfer Certificate that the minor appellant / petitioner was being

withdrawn from the School. The respondent School could have claimed only

the fees for the month of January, 2013 and not more. The claim for the fees

from January to march, 2013 is Rs.7440/- and we accordingly find the

respondent School to be entitled to only 1/3rd thereof i.e. Rs.2,480/-.

10. We accordingly dispose of this petition as under:

(i) we direct the respondent School to within three days of the father

of the minor appellant / petitioner paying the dues of Rs.2,480/-

(supra), deliver a Transfer Certificate of the minor appellant /

petitioner from the respondent School to the father of the appellant

/ petitioner;

(ii) the aforesaid is merely to take care of the situation prevalent today

and is not to be taken as an expression of opinion by us on the

entitlement of the father of the minor appellant / petitioner to the

custody of the minor appellant / petitioner or condonation by us of

the act of the father of the minor appellant / petitioner of removing

the minor appellant / petitioner from Delhi to Chandigarh and is

not to have any effect whatsoever in a proceeding if any initiated

by the mother of the minor appellant / petitioner for custody /

return of the minor appellant / petitioner to Delhi; and,

(iii) we are also leaving open the question of validity of the form

prescribed by the respondent School for Transfer Certificate

requiring the signatures of both the parents, as we are issuing this

direction in exercise of our powers under Article 226 of the

Constitution of India.