Delhi High Court
Managing Committee National ... vs Govt. Of Nct Of Delhi & Ors. on 19 January, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : January 13, 2015
Judgment Pronounced on : January 19, 2015
+ LPA 436/2009
MANAGING COMMITTEE NATIONAL
PUBLIC SCHOOL ..... Appellant
Represented by: Dr.Bipin Kr.Dwivedi, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Represented by: Ms.Purnima Maheshwari, Advocate
for R-1 & R-2
Ms.Indrani Ghosh, Advocate for R-6
Mr.K.K.Sharma, Sr.Advocate
instructed by Ms.Bhanita Patowary,
Mr.Angshuman Khound, Mr.Rajiv
Bakshi, Advocates for R-7
LPA 437/2009
MANAGING COMMITTEE NATIONAL
PUBLIC SCHOOL ..... Appellant
Represented by: Dr.Bipin Kr.Dwivedi, Advocate
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondents
Represented by: Ms.Purnima Maheshwari, Advocate
for R-1 & R-2
Ms.Indrani Ghosh, Advocate for R-6
Mr.K.K.Sharma, Sr.Advocate
instructed by Ms.Bhanita Patowary,
Mr.Angshuman Khound, Mr.Rajiv
Bakshi, Advocates for R-7
LPA Nos.436/09 & 437/09 Page 1 of 17
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. Since WP(C) No.4426-32/2006 filed by respondents No.4 to 9 of
LPA No.437/2009, and WP(C) No.555/2007 filed by the appellant in the
two above captioned appeals have been disposed of by a singular order
dated July 01, 2009, which is in challenge in the two appeals, we are
disposing of the two appeals by a singular order.
2. Relief claimed by the respondents No.4 to 9 in LPA No.437/2009,
who were the writ petitioners in WP(C) No.4426-32/2006 along with
another co-petitioner named Shobha Rani Jain in which prayer was to quash
the notices retrenching them, dated December 30, 2005, served upon them
by the appellant; with mandamus to be issued to the appellant to absorb
them in any other school established by the appellant on the basis of a
common seniority list drawn up. The relief claimed by the appellant in
WP(C) No.555/2007 filed by it was to quash the decision dated September
27, 2006 passed by the Delhi School Educational Advisory Board and
permit the appellant to allow it to close the school established by it at Bela
Road. The permission was to close the school subject to the condition the
staff at Bela Road School was absorbed in any other branch of the school
either at Daryaganj or Kalindi Kunj.
3. The parties are not very clear on the name of the society which
established National Public Schools, but it appears that a society which
came to be known as Managing Society, National Public School initially set
up a school at Bela Road and two others thereafter in Daryaganj and Kalindi
Kunj. The schools were up to the senior secondary level and on an
application filed by the society were granted recognition by the appropriate
authority as per the requirement of the Delhi School Education Act, 1973.
4. Under Section 3 of the Delhi School Education Act, 1973, the
administrator of the Union Territory of Delhi is empowered to regulate
education in all the schools in Delhi, and vide Section 4 thereof, on an
application submitted by a private individual and if found to be fulfilling the
conditions prescribed in Section 4, the appropriate authority is obliged to
grant recognition to the school. Once a school is recognized under the Act
by the appropriate authority, the running of the school including its closure
is regulated by the Act and the Delhi School Education Rules, 1973 framed
thereunder.
5. In the decision reported as AIR 1993 SC 2178 Unni Krishanan J.P. &
Ors. vs. State of A.P. & Ors. the Supreme Court opined that the
establishment of an education institution cannot be called a business or a
trade or a profession. It may fall under the category of occupation provided
no recognition is sought from the State; to bring home the point whether a
private unaided educational institution can be subjected to a State
regulation. Thus, if an educational institution obtains recognition for its
existence from the State, its affairs could be regulated by law.
6. Rule 44 of the Delhi School Education Rules, 1973 gives flesh and
blood to the skeleton structure of the Act with regards to matters concerning
establishing a school. Rule 46 of the Rules gives flesh and blood to the
skeleton structure of the Act with regards to matters concerning closing
down of a school and Rule 47 of the Rules gives flesh and blood to the
skeleton structure of the Act with regards to matters concerning absorption
of surplus employees on the closure of an aided school.
7. Since the impugned decision has referred to the said Rules, and while
interpreting Rule 46 has taken colour from Rule 47 and the expression used
in para 31 of the impugned decision by the learned Single Judge is that one
can legitimately take a leaf out of Rule 47 and impose the same condition
while granting permission under Rule 46 for closure of school as a pre-
condition, it would be advisable, if before noting the relevant facts we
reproduce Rule 44, Rule 46 and Rule 47 of the Delhi School Educational
Rules, 1973. They read as under:-
"Rule 44. Notices of intention to open a new school-
(1) With a view to enabling the Administrator to arrange for the
planned development of school education in Delhi, every
individual, association of individuals, society or trust, desiring
to establish a new school, not being a minority school, shall
before establishing such new school, give an intimation in
writing to the Administrator of his or their intention to establish
such school.
(2) The intention, referred to in sub-rule (1) shall contain the
following particulars namely:
(a the Zone in which the new school in proposed to be
established, and the approximate number of students likely to
be educated in such schools;
(b the stage of education intended to be imparted in the
new school;
(c) the number of schools of the intended stage in existence
in the Zone where the new school is proposed to be established
and the population of a Zone;
(d whether the person proposing to establish the new
school have any alternative Zone in view and if so, the
particulars of such alternative Zone with respect to the matters
specified in clauses (a) and (c); (e) the particulars including
measurements of the building or other structure in which the
school is proposed to be run;
(f) the financial resources from which the expenses for the
establishment and running of the school are proposed to be met
and whether any application is proposed to be made for any
aid;
(g) the composition of the managing committee of the
proposed new school until the new school is recognized and a
new managing committee is constituted in accordance with the
scheme of management made under the Act;
(h) the proposed procedure, until its recognition under the
Act, for the selection of the head of the school and other
teachers and non-teaching staff and the minimum qualifications
for their recruitment;
(i) the proposed scales of pay for the head of the school and
other teaching and non-teaching staff until the school is
recognized under the Act;
(j) admission, tuition and other fees which would be levied and
collected until its recognition under the Act, from the students
of the proposed new school;
(k) any other facility which is proposed to be provided for the
students of the proposed new school.
(3) The Administrator may, after considering the particulars
specified in the intimation given to him under sub-rule (2) and
after making such inquiries as he may think fit, inform the
person or persons by whom the intimation was given to him
whether or not opening of the proposed new school would be,
in the public interests:
Provided that the Administrator shall, if he is of opinion that
the number of schools existing in the Zone where the new
school is proposed to be opened is sufficient to meet the needs
of the Zone, inform the person or persons, by whom the
intimation was given to him that the opening of the new school
in such Zone would be against the public interest and may
indicate to such person or persons, any other Zone which, in his
opinion, needs the establishment of a new school, and
thereupon it would be open to such person or persons to open a
new school in the Zone indicated by the Administrator.
xxxx
Rule 46: Closing down of a school or any class in a school -
No managing committee shall close down a recognized school,
not being an unaided minority school, or an existing class in
such school without giving full justification and without the
prior approval of the director, who shall, before giving such an
approval , consult the Advisory board.
Rule 47: Absorption of surplus (employee), etc.--(1) Where as
a result of---
(a) the closure of an aided school or any class or classes in any
aided school; or
(b) withdrawal of recognition from an aided school; or
(c) withdrawal of aid from an aided school, any student or
employee becomes surplus, such student or employee, as the
case may be, may be absorbed as far as practicable, in such
Government school or aided school as the Administrator may
specify:
Provided that the absorption in Government service of any
employee who has become surplus shall be subject to the
availability of a vacancy and shall be subject further to the
condition that the concerned employee possesses the requisite
qualification for the post and has not been retrenched by the
management of the aided school on any ground other than the
ground of closure of the school or any class or classes of the
school, or withdrawal of recognition or aid from the school:
Provided further that where any such surplus employee is
absorbed in a Government school, he shall be treated as junior
to all the persons of the same category employed in the
Government schools on the date immediately preceding the
date on which he is so absorbed, and where such surplus
employee is absorbed in an aided school, he shall rank as
junior to all the persons of the same category employed in that
school on the date immediately preceding the date on which he
is so absorbed.
(2) Where any surplus employee is absorbed under sub-
rule(1)--
(a) the salary and other allowance last drawn by him at the
school from which he has become surplus shall be protected;
(b) his provident fund account shall be transferred to the
school in which he is so absorbed, and thereupon such
provident fund shall be governed in accordance with the rules
and regulations in force in that school in relation to provident
fund; and
(c) the period of his qualifying service in the school in which
he had worked before such absorption and any previous period
of qualifying service, if any, in any recognized aided school in
Delhi shall be taken into account for the purpose of computing
his pension and other retirement benefits.
(3) Without prejudice to the provisions of sub-rules (1) and
(2), where an employee becomes surplus by reason of the
closure of any class or section thereof or the discontinuance of
the teaching of any subject, such employee may be absorbed in
the first instance, as far as practicable, in such Government or
aided school as the Administrator may specify, and if the class
or section which was closed is reopened by the former school
or if any new class or section thereof is opened by such school
or if the subject, the teaching of which was discontinued, is re-
introduced by such school, or strength of the staff of the former
school is increased, such employee shall be reabsorbed in the
former school; but if such re-absorption does not take place
within a period of five years from the date of absorption of such
employee in the Government or aided school, such employee
shall be regularly absorbed in such Government or aided
school, as the case may be.
(4) Re-absorption of an employee in a former school shall
not affect his continuity of service or his seniority in relation to
that school or his emoluments, provident fund, gratuity and
other retirement benefits.
Explanation - For the purposes of sub-rules (3) and (4),
―former school means the school from which an employee has
become surplus.‖
8. It is not clear as to the date when the society established the National
Public School at Bela Road, but the admitted position is that the school at
Bela Road was the first of the three to be established in a building taken on
rent by the society from the owner thereof. Two other schools were
thereafter established at Daryaganj and Kalindi Kunj. The landlord of the
premises at Bela Road obtained a decree for ejectment which was upheld in
appeal and since the decree for ejectment attained finality, the society as
well as Management of the school was left with no option but to surrender
possession of the building at Bela Road to the landlord. As regards the
students of the school, an option was given to the parents to get their wards
admitted in the National Public School, either at Daryaganj or Kalindi Kunj.
A few staff members (and probably the ones who were dear to the
Management of the society or were otherwise influential) were adjusted in
the two schools at Daryaganj and Kalindi Kunj and in terms of Rule 46
permission of the Director of Education was sought to close down the
school at Bela Road and retrench the teaching as well as the non-teaching
staff.
9. On March 12, 2006 the Director of Education granted the permission;
but on terms. The communication addressed to the Managing Committee of
the school and the society which established the school reads as under:-
―1. All the employees & students of the school will be adjusted
in National Public School, Dariyaganj & National Public
School, Kalindi, Delhi as decided by the Managing Committee
of National Public School, 7 Bela Road, Delhi in its meeting
held on 21.01.2006.
2. The school authorities shall issue letters of adjustment to the
individual employee & a copy of the same duly acknowledged
by the concerned employee shall be submitted to the
department.
3. The closure of the school will also be subject to the approval
of the Advisory Board as provided in rule 46 of DSEA&R
1973.‖
10. As indicated in the communication itself the permission was subject
to the approval of the Advisory Board, for the reason Rule 46 of the Delhi
School Education Rules, 1973 warrants a consultation with the Advisory
Board.
11. Reference being made to the Advisory Board, it considered the matter
at the meeting of the Board held on September 27, 2006 and accorded
permission for the school at Bela Road to close down; noting that the
premises had already been vacated. The Advisory Board noted that a few
employees in the teaching and non-teaching branches were adjusted in other
schools established by the society and seven were left out who had filed a
writ petition in this Court. The Advisory Board directed that the
permission to close down the school at Bela Road would be subject to the
society absorbing these seven employees in any one of the two or both the
schools established by the society at Daryaganj and Kalindi Kunj.
12. The notices of retrenchment dated December 30, 2005 had already
been issued when no permission, as warranted by Rule 46 of the Delhi
School Education Rules, 1973 was accorded, either to the management of
the school or to the parent society which had established the school.
W.P.(C) No.4426-32/2006 had already been filed when the Advisory Board
met and took the decision.
13. The grievance of the writ petitioners, the first six of whom were
teachers and the seventh a librarian was that their services could not be
terminated and they could not be retrenched, and as a matter of fact the
school at Bela Road could not be closed without the approval of the Director
of Education and in consultation with the Advisory Board. In the writ
petition filed by the appellant which was registered as W.P.(C)
No.555/2007, the challenge was to the condition imposed by the Director of
Education while permitting closure of the school and as imposed by the
Advisory Board in its meeting held on September 27, 2006.
14. The parties debated the issue before the learned Single Judge in the
two writ petitions on Rule 59 of the Delhi School Education Rules, 1973,
for the reason the said Rule requires every recognized school to be run as
per a scheme of management, requiring a Managing Committee to be
formed, and the employee-employer relationship being between the
Managing Committee of the School and the employee. Reliance was placed
on Section 4 of the Act, as per which it was a recognized school which had
to be treated as a juristic entity. To put it pithily, the case of the society and
the management of the National Public School Bela Road was that the
school in question was a separate entity vis-à-vis the schools at Daryaganj
and Kalindi Kunj.
15. Whereas the society and the management of the school pitched their
case before the learned Single Judge in law, the seven teachers argued that
whether or not law as propounded could be attracted was contingent upon
the relevant facts. The seven relied upon their letters of appointment which
would show that they were not appointed as teachers in any specific school.
In a cleverly worded letter offering appointment, the appointment was
offered by : 'MANAGING COMMITTEE NATIONAL PUBLIC
SCHOOL', condition No.5 of the letter offering appointment stipulated :-
"That your services may be transferred to any other school
under the management managing society National School
without any extra allowance or enhancement in your salary.‖
16. The seven teachers relied upon the same, to urge that lifting the veil,
the three schools at Bela Road, Daryaganj and Kalindi Kunj were akin to
three branches of the same tree. They also relied upon common seniority
lists maintained of all teachers in the three schools wherefrom promotions
were being effected and therefrom urged that the management could not,
under the garb of closing one school, retrenched the staff at its whims.
Though not pleaded, it is apparent that the intention was to argue on the
principle of last come first go if the management of an institution found that
it had surplus hands at work. With respect to the stand taken by the
management that it did it best to absorb such number of extra hands which it
could in the schools at Daryaganj and Kalindi Kunj, the seven provided
data, which remained uncontroverted, which data has been noted by the
learned Single Judge in a tabular form in paragraph 33 of the impugned
decision, and we reproduce the same as under:-
S. Name Place of Subject Date of Reason of
No. occurrence occurrence occurrence of
of vacancy of vacancy vacancy
1. Anjali Kalindi TGT Aug, 2006 Shri Srivastava
Sood retired in and the
petitioner was
transferred to the
Kalindi Branch.
However, later
Sh.Srivastava was
allowed to join on
ad hoc basis and
the petitioner was
transferred back
to Bela Road
branch.
2. Rashmi Kalindi PGT 2004 Only one teacher
Chandra (Business for Accounts and
Studies) the vacancy for
PGT (Business
Studies exists.)
3. Arun Daryaganj S.Studies 31.01.07 Mrs.Pathak
Gupta retired.
4. G.C.Garg Kalindi S.U.P.W. - No teacher
5. Sheela Kalindi TGT 31.08.05 Mrs.Bhutani
Bannerjee Branch Biology retired but later
re-absorbed as an
ad hoc teacher
6. Meena Daryaganj/ Librarian - i. Only 1 junior
Saxena Kalindi librarian in
Kalindi which is
against CBSE
affiliation bye
laws.
ii. No librarian in
Daryaganj. This
is in violation of
the provisions of
the Delhi School
Education Act,
1973.
17. The data would evince that there were at least six vacancies against
which if not all seven, at least six writ petitioners of W.P.(C) No.4426-
32/2006 could be absorbed.
18. With respect to the decision taken by the Director of Education, to
which concurrence was accorded by the Advisory Board, the seven teachers
argued before the learned Single Judge that the Director of Education and
the Advisory Board rightly opined that the seven were required to be
adjusted in either of the two schools at Daryaganj or Kalindi Kunj because
concededly vacancies existed in said schools and further for the reason the
writ petitioners were much senior in the seniority list to other teachers
employed and continued to be employed.
19. The management did not defend its action on fact but simply urged
that Rule 46 infringed upon the freedom of a private unaided school and
amounted to an erosion of its authority and hence fell foul with the law
declared in the decision reported as AIR 2003 SC 355 T.M.A.Pai
Foundation Vs. State of Karnataka, a plea not urged in the pleadings for the
reason the same would have required the vires of the Rule to be challenged,
which has not been challenged as a matter of fact. During arguments the
stand was taken.
20. With reference to Rule 47, which requires absorption of surplus
employees when an aided school is closed, the view taken by the learned
Single Judge is that while interpreting Rule 46, one can legitimately take a
leaf out of Rule 47 and impose the same condition while granting
permission under Rule 46 for closure of school as a pre-condition, if the
facts and circumstances of the case so warrant.
21. On facts, keeping in view the language of the letter offering
appointment and combined seniority lists maintained and in the past
teachers being transferred from one school or the other, the learned Single
Judge has opined that it was apparently a case where different branches of
the same school came into existence for the reason if the employee-
employer relationship was between, as claimed by the appellant, the
Managing Committee of the every school and the employee, this was not
permissible in law.
22. A reasoning of the learned Single Judge with which we agree for the
reason an employee is not a serf. An employer can direct the employee to
do any work under him i.e. the employer, but not under any other employer
for the reason the employer does not own the employee. A master owns a
serf and can direct the serf to work under him or any other master. Since the
management had admittedly, in the past, taken recourse to a course of
conduct which showed that the employees were common to the three
branches of the school and were being transferred from one school to the
other and common seniority lists were maintained, out of which promotions
were effected; and further the letter offering appointment clearly indicated
that the employee could be made to serve in any school, estoppel would
prevent the appellant from urging anything to the contrary which is
destroyed by its past conduct.
23. In what manner the vires of Rule 46 was attacked has to be pleaded in
the writ petition. As noted above, in Unni Krishanan's case (supra) the
Supreme Court held that where a private individual establishes an
educational institution and obtains recognition from the State, the individual
would be bound by the law on the subject framed by the State.
24. Even before us during argument in the appeal, in what manner Rule
46 was ultra-vires either of the Parent Act or the Constitution was not
demonstrated.
25. The contention that the learned Single Judge has held that while
interpreting Rule 46, leaf could be taken from Rule 47, was premised on the
known principle of construction of statutes : if the language of a statute was
plain and clear and admitted of no two meanings, under the garb of
interpretation it was impermissible to vary the language of the statute.
26. The argument merits acceptance because the golden rule of
interpretation consistently followed by the Courts in India is that if the
words used in a statute are capable of one construction only, it would not be
open to the Court to adopt any other hypothetical construction on the ground
that such construction is more consistent with the alleged object and policy
of the law. Words have to be read in their ordinary, natural and
grammatical meaning. Reference could be made to the opinions reported as
AIR 1957 SC 907 Kanailal Sur Vs. Paramnidhi Sadhu Khan, (2013) 3 SCC
117 Mr.Justice Chandrashekaraiah (Retd.) Vs. Janekere C.Krishna & Ors.
etc. and 2013 (8) SCALE 541 Maharshi Mahesh Yogi Vedic Vishwvidyalaya
Vs. State of M.P. & Ors..
27. But, that would not mean that while exercising power under Rule 46,
the only option to the Director of Education is to grant approval to close a
school or refuse to grant approval to close a school. The power to grant
approval to the closure of a school would include the power to impose a
condition while granting closure to a school, or to put it differently, to
accord a permission contingent upon a condition.
28. Of course, if a power is abused, exercised mala-fide, in law or as a
matter of fact, or is otherwise unreasonably exercised, the same can be
challenged as arbitrary and hence violative of Article 14 of the Constitution
of India.
29. The appellants have not been able to show that the power has been
exercised mala-fide, unreasonably or of the kind.
30. Concededly the appellant had absorbed some teaching and non-
teaching staff at Bela Road by transferring them to the school either at
Daryaganj or Kalindi Kunj. With some the issue was settled amicably. As
regards the seven writ petitioners, notwithstanding they pointing out
existence of vacancies in the school either at Daryaganj or Kalindi Kunj and
notwithstanding that the dates of their appointment were much prior to the
staff retained and notwithstanding common seniority lists being maintained
and teachers being made to work in one school or the other i.e. transferred
inter-se the schools and notwithstanding the letters offering appointment to
them clearly indicating that they could be made to work in any branch of the
National Public School, the seven were retrenched, and in view of the fact
that the appellants have not been able to controvert the findings of fact
recorded by the learned Single Judge, we are left with no option but to
dismiss the appeals maintaining the impugned order dated July 01, 2009
dismissing W.P.(C) No.555/2007 filed by the appellants and allowing
W.P.(C) No.4426-32/2006 filed by the seven writ petitioners thereof.
31. There shall be no order as to costs in the appeals.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JANUARY 19, 2015
mamta/skb
