Delhi High Court
Sunhill Public School vs Government Of Nct Of Delhi And Ors on 6 January, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No. 599/2015 & CM No. 19218/2015
Judgment pronounced on: January 06, 2017
SUNHILL PUBLIC SCHOOL ..... Appellant
Through: Mr. R.K Saini with Ms. Minal,
Advocates.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr. Varun Nischal, Advocate for
R-1 to R-3.
Mr. Atul Kumar, Advocate for R-
4/CBSE.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present Letters Patent Appeal has been filed against the order
dated 19.02.2015 passed by the learned Single Judge in W.P. (C)
7710/2013 whereby the petition was dismissed on the ground that the
appellant did not conform to the land norms as per the requirements of
section 4 of the Delhi School Education Act and Rule 50 and 51 of the
Delhi School Education Rules, 1973.
2. Briefly stated, the relevant facts necessary to address the
controversy are as under:
"5.1 The petitioner is a school, which is being run by
an Educational Society registered under the Society
Registration Act, 1860, namely, Sunhill Educational
Society (hereafter also referred to as the 'society'). It
was asserted that the petitioner school was established
in 1982 and was, subsequently, upgraded from a
middle school to a secondary school (i.e upto class
10th) with effect from the academic session 1986-87.
Thereafter, the petitioner school applied for an
upgradation to class 12th (commerce stream only) i.e.
from a secondary school to a senior secondary school.
Initially, the petitioner's application was rejected by
DoE, inter alia, on the ground that sufficient land was
not available with the petitioner. The petitioner
appealed against the said rejection before the
Appellate Authority. The Appellate Authority directed
that the petitioner's request for upgradation be
granted for a period of two years subject to the school
authorities taking necessary steps for allotment of a
plot of land. Pursuant to the aforesaid order dated
17.12.1997, the petitioner was granted an upgradation
for a period of two years. This was, subsequently,
extended from time to time till 2004-05.
5.2 On 23.02.2005, DoE issued a show cause notice
calling upon the petitioner to show cause why the
recognition granted should not be withdrawn since the
petitioner had failed to obtain the necessary land from
DDA. The petitioner responded to the said show cause
notice by a letter dated 28.02.2005, indicating the
efforts made by the society to pursue DDA for an
alternative site. The petitioner also requested for grant
of conditional upgradation for further period. DoE
declined this request by a letter dated 19.07.2005.
Thereafter, DoE sent a communication dated
01.04.2006 stating that the students of class XIIth
would be allowed to appear in the CBSE examination
to be held in the year March 2007 on the condition
that no student would be admitted in class XIth in
2006. The petitioner assailed the aforementioned
communication dated 01.04.2006 before the Appellate
Authority, inter alia, contending that a recognition
once granted could not be withdrawn except in the
manner as contemplated under Sections 4 and 6 of the
Act. This contention found favour with the Appellate
Authority and by an order dated 14.06.2006 the
appeal was disposed of by setting aside the
communication dated 01.04.2006 and granting liberty
to the petitioner to present its case before the
competent authority who would take further action in
accordance with the provisions of the Act.
5.3 Thereafter, the petitioner was issued a show cause
notice dated 25.09.2007. The DoE alleged that the
petitioner did not have the requisite infrastructure
facilities as per the norms specified under Rule 50 and
51 of Delhi School Education Rules, 1973 (hereafter
'DSER, 1973'). The petitioner responded to the said
show cause notice by a representation dated
10.10.2007.
5.4 The aforesaid show cause notice was not pursued
by the DoE. The petitioner has obtained the relevant
file notings, which indicate that there were other
similar cases and that the respondents were of the
view that a decision would have to be taken in respect
of all cases and not on case to case basis. However, no
extension of upgradation was granted to the
petitioner. The petitioner school by a letter dated
18.02.2008 requested that the issues be taken on a
priority basis, however, the DoE did not respond to
the said communication.
5.5 The petitioner was issued another show cause
notice on 13.06.2012, inter alia, alleging that the
petitioner had not complied with the condition of
upgradation and had failed to procure land from the
Government Agency. The petitioner was called upon
to show cause as to why recognition for senior
secondary level of the school may not be withdrawn
under Section 4(6) of the Act read with Rule 45, Rule
50 (xviii) and Rule 56 of DSER, 1973.
5.6 The petitioner responded to the aforesaid show
cause notice by a letter dated 11.07.2012. After
considering the response of the petitioner, DoE passed
the order dated 03.12.2012 withdrawing the
recognition with effect from the academic session
2013-14. By the impugned order dated 04.09.2013, an
appeal preferred by the petitioner against the said
order dated 03.12.2012 was rejected by the Appellate
Authority."
3. Mr. R. K. Saini, learned counsel appearing on behalf of the
appellant strongly contended that the order passed by the learned Single
Judge is wholly erroneous and contrary to the settled principles of law.
The learned counsel submitted that there is no provision under the Delhi
School Education Act, 1973 (hereinafter referred to as "the Act") and the
Delhi School Education Rules, 1973 (hereinafter referred to as "the
Rules") to withdraw the upgradation/recognition on any other grounds
other than the grounds mentioned in the Act. He further submitted that
the Directorate of Education can withdraw recognition of a school only
when the conditions specified in sub-section (1) of section 4 or in Rule 50
of the Rules are not complied with by any recognized school.
4. The learned counsel for the appellant urged that the appellant
school has complied with all the conditions of recognition as prescribed
under section 4 of the Act without any exception and to the satisfaction of
the Authorities. He also claimed the ground of parity and urged that there
are similar schools which do not conform to the land norms and yet no
action has been taken against the said schools and thus, the issue of land
cannot be taken as a cause of action for the withdrawal of
recognition/upgradation of the appellant school.
5. The learned counsel for the appellant further contended that the Lt.
Governor vide order dated 14.06.2006 in case No. 23/06-CA set aside the
order dated 01.04.2006 passed by the Directorate of Education proposing
withdrawal of upgradation. In compliance of order dated 14.06.2006, the
Directorate of Education issued a show cause notice on 25.09.2007 to
which a detailed reply was filed on 10.10.2007 and thereafter, the
respondents did not take any action against the school meaning thereby
that it was satisfied with the reply dated 10.10.2007 of the school.
Thereafter, the respondent issued a show cause notice again only on
13.06.2012 after sleeping over the matter and followed the alleged
procedure after a gap of almost 6 years.
6. To substantiate his arguments, the learned counsel relied upon Bal
Vikas Public School and Anr. vs. Govt of NCT of Delhi & Anr (C.W.
No. 3838 of 2000) decided on 03.01.2003 and Glory Public School and
Anr. vs. Lt Governor, Govt of NCT & Ors (C.W. 2126/2003) decided on
28.05.2003, wherein it has been categorically held that the new norms
with reference to requirement of land were mere executive instructions
and did not partake the nature of statutory Rules as envisaged in section
28(2) of the Act. It was further held that there is no legal sanction for
making these executive instructions applicable retrospectively.
7. Reliance was also placed by the counsel for the appellant upon The
Digamber Jain Society for Child Welfare (Regd.) vs. The Delhi
Administration and others (C.W. No. 333 of 1977) wherein it was held
that recognition cannot be revoked except in the manner as contemplated
by section 4 and 6 of the Act.
8. On the converse, Mr. Varun Nischal, learned counsel appearing on
behalf of the respondents No. 1 to 3 and Mr. Atul Kumar, learned counsel
appearing for respondent No. 4 disputed the contentions urged on behalf
of the appellant and contended that the appellant has failed to comply
with the conditions prescribed under sub-sections (1), (4) and (6) of
section 4 of the Act and Rule 50 of the Rules.
9. The learned counsel for the respondents further contended that the
recognition/upgradation was granted subject to certain conditions which
also includes land norms and since the conditions were not complied
with, the appellant school was liable to be derecognized. Further, no
negative equality could be claimed by the appellant merely on the basis
that no other school has been proceeded against for de-recognition, would
not allow the appellant school to be continued to be recognized despite
non compliance with the statutory conditions.
10. We have heard learned counsel for the parties and considered rival
submissions and perused the material available on record.
11. Before dealing with the controversy, it would be necessary to refer
to the relevant provisions of the Act. Relevant sub-clauses of section 4 of
the Act read as under:
"4. Recognition of schools-- (1) The appropriate
authority may, on an 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 regular payment of salary and
allowances to its employees;
(b) it has a duly approved scheme of management as
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.
xxxxxx
(4) Where the managing committee of a school obtains
recognition by fraud, misrepresentation or
suppression of material particulars, or where, after
obtain-ing recognition, the school fails to continue to
comply with arty 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).
xxxxxx
(6) Every existing school shall be deemed to have
been recognised under this section and shall be
subject to the provisions of this Act and the rules made
thereunder :
Provided that where any such school does not satisfy
any of the conditions specified in the proviso to sub-
section (1), the prescribed authority may require the
school to satisfy such conditions and such other
conditions as may be prescribed, within a specified
period and if any such condition is not satisfied,
recognition may be withdrawn from such school."
12. Rule 50 of the Rules framed under the Act reads as under-
"50. Conditions for recognition-- No private school
shall be recognised, or continue to be recognised, by
the appropriate authority unless the school fulfils the
following conditions, namely:-
xxxxxx
(vii) the building or other structure in which the
school is carried on, its surroundings, furniture and
equipment are adequate and suitable for an
educational institution and, where there is any
business premises in any part of the building in which
such school is run, the portion in which the school is
run adequately separated from such business
premises;
(viii) the arrangements in the building or other
structure and in the furnishings thereof meet
adequately the requirements of health and hygiene;
xxxxxx
(x) the accommodation is sufficient for the classes
under instruction in the school;"
13. Rule 51 of the Delhi School Education Rules, 1973 requires every
private school seeking recognition to provide the facilities indicated
therein. Such facilities include facility for physical education, library
service, laboratory work, workshop practice and extra-curricular
activities. It is obvious that such facilities would require sufficient space.
Physical education would require playgrounds; library service would
require space for library and a reading room, laboratory work would
require laboratories, workshop practice would require a vocational
workshop for conducting workshop practice and co-curricular activities
would also require suitable space. These facilities are in addition to the
classes required for imparting tuitions.
14. Rule 56 of Delhi School Education Rules, 1973 provides that if a
school ceases to fulfill any of the requirement of the Act or any of the
conditions specified in Rule 50 or fails to provide the facilities as stated
under Rule 51, the recognition granted to such any school may be
withdrawn. Rule 56(1) of the rules is reproduced hereinunder-
"56. Suspension or withdrawal of recognition-- (1) If a
school ceases to fulfil any requirement of the Act or
any of the conditions specified in rule 50 or fails to
provide any facility specified in rule 51, the
appropriate authority may, after giving to the school a
reasonable opportunity of showing cause against the
proposed action, withdraw for reason to be recorded
in writing, recognition from the school:
Provided that where the appropriate authority is
satisfied that the deficiencies or defects are capable of
immediate or early removal, it may, instead of
withdrawing the recognition suspend the recognition
for such period as it may think fit to enable the
managing committee of the school to remedy the
deficiencies or defects to the satisfaction of the
appropriate authority:
Provided further that where the recognition of a
school has been withdrawn or suspended, no
appropriate authority shall grant recognition of such
school whether run by the name by which it was
known at the time of such withdrawal or suspension or
by any other name, unless the school has removed the
deficiencies or defects for which the recognition has
been withdrawn or suspended."
15. It is clear from the above provisions of law that requisite
infrastructure and facilities is a pre requisite for recognition/upgradation
to any private school and the recognition shall be withdrawn if the said
conditions are not complied with.
16. To deal with the submission made by the learned counsel for the
appellant that at the time of recognition i.e. 1996-1997, there were no
land norms prevailing for grant of recognition. In this context, it would
be relevant to mention para 21 of the impugned judgment which reads as
under-
"21. .....Although DoE had not specified any land
norms prior to 24.12.1999, it has been affirmed that
the DoE followed the land norms as prescribed by
CBSE. The relevant noting filed by the DoE are as
quoted below:-
Before 24.12.1999, there were no land norms
set by the Directorate of Education for
recognition of schools. The Directorate used to
follow land norms of CBSE for affiliation which
are as follows;-
-250 sq. m of area + 1 sq. m for every student
on the rolls for a middle level.
-500 sq. m of area + 1 sq. m for every student
on the rolls for a secondary level.
-750 sq. m of area + 1 sq. m for every student
on the rolls for a senior secondary school."
17. It is an undisputed fact that the appellant school was established in
the year 1982 and upgraded to a secondary level school in the year
1986-87. Thereafter, the appellant school applied for senior secondary
school status and was granted permission in the year 1996-97 subject to
certain conditions. We find that it would not be correct to contend that
there were no land norms prevailing during the period of 1996-97. It is
evident from the record that the appellant was required to have an area of
750 sq. meters + 1 sq. meter for every student for being recognized as a
senior secondary school. In the given case, Directorate of Education vide
order dated 24.12.1999 affirmed that the land norms prescribed for a
school to be recognized at the Senior Secondary level is a minimum area
of 3000 sq. meters. However, the appellant school is on a plot of land
measuring 243.90 sq. meters, which is much less than the prescribed
limit.
18. At this stage, it would be pertinent to set out the operative part of
the order dated 17.12.1997 passed by the Lt. Governor, Delhi. The
relevant para reads as under-
"I am inclined to take a liberal view in the matter and
allow the appellant's request for upgradation to Senior
Secondary level for commerce stream only, for a
period of two years subject to the condition that the
school authorities shall, within these two years, take
necessary steps to have proper plot of land allotted to
them by the DDA so that they can move out of this
difficult situation. I order accordingly."
19. In this backdrop, we are of the considered view that the appellant
did not have the necessary infrastructure and yet had been granted
recognition on the expectation that the appellant would secure the
necessary plot of land. The appellant did not make any efforts to take
necessary steps to acquire the proper plot of land for the said recognition.
20. In view of the above facts and circumstances, we see no reason to
interfere with the judgment rendered by the learned Single Judge.
21. The appeal is accordingly dismissed.
SANGITA DHINGRA SEHGAL, J
CHIEF JUSTICE
JANUARY 06, 2017
