Social Jurist A Civil Rights Group vs Govt. Of N.C.T. Of Delhi & Anr
2015 Latest Caselaw 3713 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 7th May, 2015.

+                         W.P.(C) No.43/2006

       SOCIAL JURIST A CIVIL RIGHTS GROUP           ..... Petitioner
                    Through: Mr. Ashok Agarwal with Mr.
                              Khagesh B. Jha, Advs.

                                   Versus

    GOVT. OF N.C.T. OF DELHI & ANR.             ..... Respondents
                  Through: Mrs. Avnish Ahlawat, Adv. for R-1.
                           Mr. Ajay Arora with Mr. Sandeep
                           Singh, Advs. for MCD.
                           Mr. Ajay Verma, Adv. for DDA.
                           Mr. Balendu Shekar with Ms. Somya
                           Rathore, Advs. for EDMC.
                           Mr. Hirein Sharma with Mr. B.S.
                           Tomar,            Advs.             for
                           Intervener/applicant.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

CM No.20634/2014 (of the petitioner for directions) & CM No.7769/2015 (of Jan Vikas Shiksha Parishad for impleadment).

1. This petition under Article 226 of the Constitution of India, filed as

Public Interest Litigation, seeking a direction to the Government of National

Capital Territory of Delhi (GNCTD) and the Municipal Corporation of

Delhi (MCD) to take action for closure of all unregistered/unrecognized

private schools in Delhi was disposed of vide judgment dated 8th February,

2008 with a direction to the Directorate of Education, GNCTD, i) to

undertake a survey and identify unauthorized and unrecognized educational

institutions running in Delhi; ii) to call upon such institutions to apply for

post facto permission in terms of Section 3(2) of the Delhi School Education

Act, 1973 (School Act); iii) upon receipt of such applications, have the said

institutions inspected to evaluate the infrastructural and other facilities

available in view of the requirements of Section 4 of the School Act read

with Rules 50 and 51 of the Delhi School Educational Rules, 1973; iv) to, if

find the said institutions satisfying the said conditions, to grant them

recognition; v) if though do not find the institutions to be immediately

satisfying the requirements for recognition but capable of achieving the

same in near future, grant them time to do so; and, vi) to take steps for

closure of the institutions which, either do not apply at all for recognition or

are not found to be meeting the criteria for recognition.

The Directorate of Education, GNCTD, MCD, New Delhi Municipal

Council (NDMC) and Delhi Development Authority (DDA) were also

directed to submit an Action Taken Report.

2. Action Taken Reports filed from time to time were perused and

further directions issued.

3. The Supreme Court, vide order dated 2nd April, 2009 in SLP (C)

No.21952/2008 preferred by some of the private unaided schools against the

judgment dated 8th February, 2008, on the representation of the Directorate

of Education, GNCTD that survey had been conducted by a Committee

whose report was awaited, directed that the schools be not closed till the

Report of the Committee was received and the final decision thereon taken.

4. The proceedings in this writ petition were accordingly closed vide

order dated 15th April, 2009.

5. CM No.20634/2014 has been filed by the petitioner contending that

the directions issued by this Court in judgment dated 8th February, 2008

remain uncomplied and as a result hundreds of unauthorized and

unrecognized pre-primary and play schools continue to function and seeking

a direction to the respondents to submit an Action Taken Report.

6. Notice of the application was issued.

7. An affidavit dated 24th April, 2015 has been filed by the Directorate

of Education, GNCTD stating, (i) that survey of all unrecognized schools in

Delhi had been conducted and provisional recognition has been granted to

almost 800 schools with a condition that they will fulfill the conditions of

recognition as laid down under the School Act and the Rules; (ii) that a

Circular dated 22nd March, 2013 was also issued asking all the unrecognized

schools having the required area of land as per the prescribed norms, to

apply for recognition; (iii) the unrecognized schools situated in

unauthorized/undeveloped/regularized colonies and possessing the required

land area were asked to seek recognition; (iv) primary education is looked

after by the MCD/NDMC/Delhi Cantonment Board, no action was taken in

respect of nursery/play schools/crèches; (v) nursery/play schools/crèches are

not covered under the Right of Children to Free and Compulsory Education

(RTE) Act, 2009 as children from the ages of 6 to 14 years only are covered

under the provisions of the said Act; so these institutions are not dealt with

by the Directorate of Education, Government of India; (vi) however since

vide judgment dated 5th November, 2014 in W.P.(C) No.4607/2013 titled

Justice for All Vs. GNCTD directions had been given to the Directorate of

Education to monitor nursery/play schools/crèches for implementation and

monitoring of land lease conditions, implementation of the said direction

was underway; (vii) that the matter regarding running of 300 unrecognized

schools in Delhi, despite all efforts of the Directorate of Education as

narrated above is pending consideration of the appropriate authorities; and,

(viii) a huge responsibility of adjusting students already studying in these

schools, by enrolling them in other appropriate schools convenient to them

is a major task which has to be carried out before taking action of closure.

8. The East Delhi Municipal Corporation (EDMC) has also filed an

affidavit dated 28th April, 2015 stating that it had granted provisional

recognition to such schools and 107 schools had applied to it for recognition

and of which 58 had deposited the processing fees while the others were yet

to deposit the process fee.

9. CM No.7769/2015 for impleadment has been filed by Jan Vikas

Shiksha Parishad claiming to be a Society established with the objective of

providing support to unregistered, unaided and unrecognized primary

schools. It is pleaded, (i) that the schools seeking closure of which the

petition was filed were not impleaded as a party to the petition and not heard

before the judgment dated 8th February, 2008; (ii) that the closure of such

schools will jeopardize the future of thousands of children and affect the

livelihood of hundreds of school teachers nearly 100% of whom are women;

(iii) that since the judgment dated 8th February, 2008, the RTE Act had come

into existence on 26th August, 2009 inter alia directing the

unrecognized/unaided primary schools to seek recognition from Directorate

of Education for the purpose of regulation and conduct of such primary

schools; (iv) that in furtherance of the same, Circular dated 22nd March,

2013 under Sections 18 & 19 of the RTE Act was issued; (v) that as per the

Circular, regulations had been prescribed for recognizing primary schools

for the purpose of conducting education up to the primary level i.e. Class-Vth

; (vi) that the minimum area of land prescribed was of about 200 sq. yds.

besides the requirement consisting of minimum facility of five class rooms

and other prescribed facilities; (vii) that the parameters prescribed in the

Circular dated 22nd March, 2013 for recognition are harsh and arbitrary;

(viii) that the unrecognized private primary schools provide education to the

children of underprivileged socio-economically backward citizens; (ix) that

these unaided/unrecognized primary schools are a blessing in disguise for

the Directorate of Education to promote its goal of RTE Act; (x) that most of

the unrecognized private schools are unable to fulfill all the criteria laid

down in the Circular dated 22nd March, 2013 for recognition; (xi) it is for

this reason only that provisional recognition is being extended from time to

time; (xii) that the applicant Society had made a representation for relaxation

of the parameters for recognition; (xiii) that 1500 unrecognized private

schools would be affected by the direction if any now issued for closure

thereof; and, (xiv) that all the said questions cannot be decided in the

application filed by the petitioner and the petition be revived and an

opportunity be given to the applicant Society to file a counter affidavit.

10. We have heard the counsel for the petitioner and the counsels for the

Directorate of Education, GNCTD, MCD, DDA, EDMC and the counsel for

the applicant Society.

11. This Court, in judgment dated 8th February, 2008 in this petition, has

held, (i) that the School Act empowered the Administrator, Delhi to regulate

education in all the schools in Delhi; thus the operation of the School Act is

not limited to recognized schools only; (ii) that a new school can be

established only with the permission of the Administrator and subject to the

fulfilment of the requirements stipulated in the School Act and the Rules

framed thereunder; and, (iii) that the GNCTD had however failed to enforce

the provisions of the School Act resulting in there being a larger number of

unrecognized and unauthorized schools in Delhi than those that are

authorized and recognized.

12. After the aforesaid judgment, the RTE Act was notified on 26th

August, 2009 and came into force on 1st April, 2010 and though under the

School Act and Rules there was no express prohibition against establishing a

school without seeking approval/recognition therefor from the Directorate of

Education, GNCTD (and owing to which this Court had to adjudicate this

aspect vide judgment dated 8th February, 2008), Section 18 of the RTE Act

prohibits a school other than a school established, owned or controlled by

the appropriate government or the local authority from being established or

functioning without obtaining a certificate of recognition. However in the

light of the admitted position that a large number of unrecognized schools

exist in Delhi, Section 19(2) of the said Act gave a time of three years to

such schools to take steps to fulfil the norms and standards of recognition.

13. "School" in Section 2(n) of the RTE Act has been defined as any

recognized school imparting elementary education. "Elementary education"

is defined in Section 2(f) of the RTE Act as education from Ist Class to VIIIth

Class. It thus follows that no school imparting education from Ist Class to

VIIIth Class can either be established or if already functioning prior to the

coming into force of the RTE Act can continue to function after a period of

three years from the coming into force of the RTE Act. A Division Bench of

this Court in Social Jurist, A Civil Rights Group Vs. Government of NCT

of Delhi AIR 2013 Delhi 52 has held that the RTE Act is not applicable to

nursery schools but has suggested to the Government to consider extending

the applicability of the RTE Act to nursery schools as well.

14. The petitioner, in the application under consideration has highlighted

the continued functioning of hundreds of unauthorized and unrecognized

„pre-primary and play schools‟ only. However a perusal of the writ petition

and the judgment dated 8th February, 2008 therein shows that the same was

not confined to pre-primary and play schools only but was with respect to all

schools where „children between the age group of 2 to 18 years‟ were stated

to be „studying in classes LKG to XIIth‟ (refer para 3 of the writ petition).

Thus the judgment dated 8th February, 2008 in this petition was not confined

to pre-primary and nursery schools only and was with respect to schools

where children from age group of 2 to 18 years were studying in classes

LKG to XIIth.

15. If the word „school‟ in Sections 18 and 19 of the RTE Act were to be

read as a school as defined in Section 2(n) of the Act then the provisions of

Sections 18 and 19 would have applicability to only those schools which are

imparting education from Ist Class to VIIIth Class and would not cover pre-

primary and play schools qua which this application has been filed. To us,

however it appears that the context in which the word „school‟ has been used

in Sections 18 and 19 of the RTE Act is different from the definition of the

word „school‟ in the Act. Needless to state that the definitions in Section 2

thereof are „unless the context otherwise requires‟. We are of the view that

the legislature while enacting the RTE Act could not have mean that while a

school imparting education from Class I to Class VIII necessarily has to be a

recognized school; a school imparting education from Class IX to Class XII

or a pre-school or pre-primary school need not to be recognized. Legislature,

while enacting the RTE Act is deemed to be aware of the judgment dated 8 th

February, 2008 in this petition which, even in the absence of any such

prohibition in the School Act had interpreted the provisions thereof as

prohibiting any school imparting education to children between the age

group of 2 to 18 years and which would cover pre-primary and play schools

as well as Classes IX to XII, from functioning without obtaining recognition

from the Directorate of Education of the GNCTD. However since a

Division Bench of this court as aforesaid has already held that the RTE Act

does not apply to nursery schools, we neither feel the need to say anything

further or the need to refer the question, in this application, to a larger bench.

The fact remains that the direction in the judgment dated 8th February, 2008

in this petition at least qua Classes I to VIII of the schools was interdicted by

the RTE Act.

16. It would therefore be seen that though the judgment dated 8th

February, 2008 of this Court directed the survey to be conducted and an

opportunity for obtaining recognition to be given and closure of the schools

remaining unrecognized but because of the statutory intervention vide

Section 19(2) of the RTE Act, the schools were granted a period of three

years to obtain recognition and which period of three years expired on 31 st

March, 2013.

17. We had owing thereto, on 11th February, 2015 itself enquired from the

counsel for the petitioner as to what is the enforceability of the judgment

dated 8th February, 2008 in the light of the subsequent statutory intervention.

18. The counsel for the petitioner today has agreed that in the light of the

statutory intervention aforesaid, the direction in the judgment dated 8th

February, 2008 could not have been enforced. He however contends that the

time given by Section 19(2) of the RTE Act for the unrecognised schools to

obtain recognition by 31st March, 2013 is also now over, at least now the

unrecognized schools should be shut down as directed by this Court.

19. Per contra, counsels for the opposite parties state that the shutting

down of the schools still remaining unrecognised would entail leaving

thousands of students studying therein without a school. They state that

attempts are underway to adjust the said students in other schools and

whereafter only the closure can be effected.

20. The counsel for the applicant Society also states that a representation

has been made for relaxing the norms of recognition and which

representation is under consideration and till the decision thereon, the

schools should be allowed to function. He also contends that the said schools

are performing a function which the State ought to have performed, of

providing educational facilities and are thereby serving the society and

closure thereof would not be in public interest.

21. We have considered the rival contentions.

22. Supreme Court, as far back as in State of Orissa Vs. Bhupendra

Kumar Bose AIR 1962 SC 945, finding the Government to have issued an

ordinance validating a election with respect to one municipality as well as

validating electoral rolls prepared in respect of other municipalities and both

of which had been set aside by an earlier judgment of the Court and faced

with a challenge to the said ordinance held that though a judgment delivered

by the High Court under Article 226 must be respected but that is not to say

that the legislature is incompetent to deal with the problems raised by the

said judgment if the said problems and their proposed solution are otherwise

within the legislative competence. It was further held that the lapsing of

such an ordinance would not revive the judgment setting aside the election

and the electoral rolls. It was clarified that if the right created by the statute

(ordinance) is of an enduring character, that right cannot be taken away

because the statute by which it was created has expired.

23. Similarly, in Smt. Indira Nehru Gandhi Vs. Sh. Raj Narain 1975

Suppl. SCC 1, it was held that the power of the legislature to validate

matters which have been found by judgments or orders of competent courts

to be invalid or illegal is a well known pattern; the legislature validates acts

and things done by which the basis of the judgments or orders of competent

courts is changed and the judgments and orders are made ineffective; the

effect of validation is to change the law so as to alter the basis of any

judgment which might have been given on the basis of old law and thus

make the judgment ineffective; the rendering of a judgment ineffective by

changing its basis by legislative enactment is not an encroachment on

judicial power but a legislation within the competence of the legislature,

rendering the basis of the judgment non est.

24. What has happened in the present case is that after this Court had vide

judgment dated 8th February, 2008 in this petition directed the unrecognized

schools to be identified and giving of an opportunity to them to obtain

recognition and closure of the schools remaining unrecognized, according to

the petitioner all within six months of the judgment i.e. by August, 2008, the

legislature allowed the unrecognized schools to function till 31 st March,

2013. The counsel for the petitioner also admits that in view of the said

development i.e. of time instead of till August, 2008 as per the judgment, till

31st March, 2013 having been given vide the RTE Act for the unrecognized

schools to obtain recognition, the judgment could not have been enforced till

31st March, 2013. His contention however is that now that the said time is

also over, the judgment should be enforced.

25. We however entertain doubt whether the judgment which had once

ceased to have force owing to the interdiction of the RTE Act would so

stand revived. The School Act, on consideration of the provisions whereof

the judgment in the writ petition was pronounced did not give any such time

limit for closure of the unrecognized schools. It was for this reason that this

Court had to intervene to direct closure. The judgment of this Court also did

not fix any time limit for closure save for the direction, of the Action Taken

Report to be filed within six months. The counsel for the petitioner contends

that the closure was to be within six months. We however entertain doubt

qua the correctness of the said contention also. This Court had also

provided for grant of time to the schools to obtain recognition.

26. We however do not feel the need to adjudicate whether the judgment

could stand revived after 31st March, 2013 for the reasons hereinafter

recorded.

27. Though undoubtedly in terms of Sections 18 & 19 (2) of the RTE Act

also, after 31st March, 2013 unrecognized schools cannot in law function but

we cannot shut our eyes to the harsh reality, of the children studying therein

being left without any school to go to, if a direction for immediate shutting

down of the said schools were to be issued.

28. The counsel for the petitioner of course contends that at the same

time, the children cannot be permitted to continue studying in unrecognized

schools, most of which are housed in dangerous buildings imperilling the

safety of the children. He also contended that the children studying in said

schools be shifted to the nearest Government/Municipal school.

29. We however asked the counsel for the petitioner whether not such

shifting of all the students studying in unrecognized schools to the nearest

Government/Municipal school if ordered, would result in overcrowding

thereof beyond their capacity resulting in the education of the children

already studying in those schools also being affected.

30. The counsel for the petitioner has no reply.

31. Having given our considered thought to the matter we are of the

opinion that giving a direction at this stage for immediate closure of all

unaided schools would not be in public interest. In fact this Court in

judgment dated 8th February, 2008 also, being conscious of the said fact, did

not fix any time limit for the various steps directed therein to be undertaken

and only directed Action Taken Report to be filed within six months thereof.

The Supreme Court in the order in the SLP preferred thereagainst also, left

the time schedule for closure to the discretion of the governmental

authorities.

32. We therefore are of the opinion that it would be prudent to still leave

the said aspect to the governmental authorities rather than this Court,

ignoring the harsh consequences of issuing a direction for immediate closure

of the unrecognized schools, ordering so. We nevertheless direct the

Directorate of Education, GNCTD, MCD, NDMC, EDMC and the DDA to

ensure immediate closure/shifting of those unrecognized schools which are

housed in any premises which may pose a threat to the safety of the children

studying therein. We also issue a direction to the concerned authorities to

expeditiously decide the issue of regularization if any to be granted or the

change if any to be made in the norms prescribed for recognition of the

schools. We also remind the governmental agencies of Sections 18 and

19(2) of the RTE Act and with which they are in any case required to

comply.

33. In view of the aforesaid, need for any further order on CM

No.7769/2015 does not arise.

With the aforesaid, the applications are disposed of.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE MAY 07, 2015 „pp/gsr‟