The Indian School vs Government Of Nct Of Delhi & Ors.
2019 Latest Caselaw 1021 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of decision: 15th February, 2019

+      W.P.(C) 1422/2019 & CM APPLs. 6523/2019 (for directions)
       CM APPL. 6524/2019 (for exemption)

        THE INDIAN SCHOOL                      ..... Petitioner
                     Through: Mr.       Pramod          Gupta,
                          Ms.Vanshika Sethi and Ms. Vrinda
                          Arora, Advs.

                          versus

       GOVERNMENT OF NCT OF DELHI & ORS. .. Respondents

Through: Mr. Ramesh Singh, SC with Mr. Chirayu Jain and Ms. Nikita Goyal, Advs. for GNCTD Mr. Santosh Kr. Tripathi, ASC for DOE with Mr. Shashank Tiwari and Mr. Rishabh Ostwal, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

% J U D G M E N T (ORAL)

1. The petitioner-School is facing a show cause notice issued to it, on 24th January, 2019, by the Deputy Director of Education (South) (hereinafter referred to as "the DDE"). The show cause notice emanates from a visit made to the School by the officials of the Directorate of Education (hereinafter referred to as "the DOE") on 10th December, 2018, in which, the show cause notice alleges, violations of various provisions of Delhi School Education Act, 1973 and Delhi School Education Rules, 1973, as well as of various directives issued

by the DOE, were found to be taking place.

2. There were further allegations in the show cause notice, but, given the view that I propose to take, it is not necessary for me to enter into the said allegations.

3. The prayer clause in the writ petition reads thus:

"a. issue a writ, order or direction in the nature of mandamus directing the Respondents to provide the documents mentioned by the Petitioner in para 35 of the present petition along with all the other connected or related documents/ records which form the basis of the inquiry and lead to issuance of the Show Cause Notice dated 24.01.2019;

b. issue a writ, order or direction in the nature of mandamus directing the Respondents to provide the Petitioner reasonable opportunity of showing cause against the proposed action;

c. issue a writ, order or direction in the nature of mandamus directing the Respondents to provide the Petitioner personal hearing by the appropriate authority under the Delhi School Education Act, 1973, before taking any action under section 24(4) of Delhi School Education Act, 1973, and

d. Pass such other and further order which as this court may deem fit and proper in the facts and circumstances of the case."

4. It is well settled that the jurisdiction of this Court, to interfere at the stage of show cause notice, in exercise of its power under Article 226 of the Constitution of India, is heavily circumscribed, and is

limited to rare and exceptional cases in which, for example, the authorities issuing the show cause notice are acting without jurisdiction or where the show cause notice seeks to reopen issues which stand decided in earlier proceedings, among others.

5. The facts in the writ petition, which have been urged as a justification for the prayers made therein, may be briefly stated thus:

(i) On 21st May, 2018, the DDE forwarded to the petitioner- School, a complaint dated 16th May, 2018, which had been addressed to the Hon'ble Chief Minister of Delhi regarding the functioning of the School, to which the School responded, on 23rd May, 2018.

(ii) On 9th July, 2018, the petitioner-School received an e- mail from the DDE, seeking a clarification on 27 points enumerated therein. This was followed by a visit, at the premises of the School, by officials of the DOE, on 10 th July, 2018, on which occasion the petitioner had handed over, to the said officials, the documents referred to, in the email dated 9th July, 2018 (supra). A further communication was addressed by the School, to the DDE, on 10th July, 2018.

(iii) On 12th July, 2018, an order was issued, by the DOE, containing various directions and prohibiting the School from collecting enhanced fees from the academic session 2017-2018, as also to refund excess fees, if already collected. The said order

was assailed, by the petitioner, before this Court, vide W.P.(C) 8077/2018, which is presently pending,

(iv) In the said writ petition, I had, on 26th November, 2018, passed an order, staying the direction for refund of excess fees collected, but not interfering, at the interim stage, with the direction not to charge increased fees for the next academic session.

(v) Pursuant thereto, the writ petition states that the School had, on its website, posted the revised fees circular.

(vi) The writ petition further asserts that "in the meantime", some parents had made complaints, on the website of the School, which persuaded the School to file CS (OS) 334/2018, seeking damages, claiming that it had been defamed. Notice stands issued in the said suit which is also pending adjudication before this Court.

(vii) On 8th December, 2018, the School received a notice from the Committee on Petitions of the Legislative Assembly of Delhi. Pursuant thereto, show cause notice was issued, to the petitioner, on 17th December, 2018, which referred to the inspection of the School, made by the Committee on Petitions and alleged that (a) the school was "playing with the safety and security of students and staff" by running its office and its activity room/art room in the basement, the entry of which was

found sealed by a wooden display board, (b) certain rooms on the first and second floor were found created through using wooden partition corridors, which did not appear to the part of the sanctioned building plan of the MCD, (c) porta-cabins were created on the roof of the building, in which classrooms and other activities were being running, (d) the School failed to provide records of the CCTV cameras/DVR footage, to the Committee on Petitions and (e) the School had not provided complete record of all EWS/DG students which amounted to concealment of facts.

(viii) The School was directed to submit its explanation, regarding these shortcomings, along with authenticated copy of the sanctioned building plan of the School, and Fire Safety Certificate, to the office of the DDE within three days, failing which action under the Delhi School Education Act and Rules was threatened.

(ix) The petitioner, in the circumstances, petitioned this Court by way of W.P.(C) 13480/2018, containing the following prayers:

"a) Issue writs of certiorari, order directions in the nature of calling for the records pertaining to the Petition against the Petitioner as entertained by the Committee on Petitions;

b) Issue Writs of certiorari, order directions in the nature thereof for quashing of the Notices dated 30.11.2018 and 06.12.2018 and quashing and

setting aside the forced visit and Meeting dated 10.12.2018 held at petitioner school and all the proceedings of Committee on Petition and orders issued by Respondent no. 4, emanating therefrom;

c) Issue a Writ of Declaration or any other writ, order or direction declaring 2nd Proviso to Rule 204 of Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi, 1997, as ultra vires and unconstitutional and, therefore, deserves to be struck down; and

d) Pass such other and further order such as this court may deem fit and proper in the facts and circumstances of the case."

(x) The said writ petition is presently pending before the Division Bench of this Court. The concluding paragraphs of the order passed by this Court on 19th December, 2018, in the said writ petition, merits reproduction thus:

"In this backdrop, Mr. Sethi has strongly urged before this Court that the proceedings initiated by the Committee be stayed.

Mr. Nandrajog, learned senior counsel appearing on behalf of the Committee refutes the submissions so made by the petitioner and contends that the Committee is well within its right- to look into the complaint received by an ordinary citizen.

It is submitted that the officers of various departments including Directorate of Education were not performing, the statutory duty and thus, the committee has taken upon itself to carry out the inspection and examine the complaint against the school. It is contended

that the committee has strictly followed the due process and followed the principles of natural justice. The Committee had afforded every opportunity to the school to explain its stand. He further submits that in any case, the report is only recommendatory in nature and thus, the petition is premature.

Mr. Nandrajog further submits that based on the inspection, the Committee would seek comments from the school and grant them reasonable opportunity of atleast 15 days to furnish their response and a hearing would be granted before the final report is submitted. He also submits on instructions, that the Committee would not be required to visit the school again neither there would be any necessity for the Principal or the Manager to be present before the Committee, except for a hearing based on the inspection report.

Mr. Sethi submits that the officials of the Directorate of Education and other statutory bodies are being pressurised to take action against the school without following the due process of granting a show cause notice, hearing and passing of an order.

As far as the submission of Mr. Sethi pertaining to influencing and pressurizing the officials is concerned, Mr. Nandrajog submits that the allegations are baseless and unfounded. In case the Committee finds that the officials are not performing their statutory duties, they would take action against the officials but they have not and would not pressurize any official of any statutory body and will allow them to perform their duty by affording opportunity of hearing to the respondent as per law.

We have heard the learned counsel for the parties.

Binding the respondent to the stand taken in Court, issue notice to the respondents to snow cause as to why the petition be not admitted. Counter affidavit be within

four weeks and rejoinder thereto, if any, be filed within two weeks thereafter

List on 13th February, 2019."

6. It is clear from a glance of the prayers made in the writ petition, extracted supra, that the writ petition was admittedly directed against the proceedings being conducted by Committee on Petitions, and Mr.Pramod Gupta candidly acknowledges this fact.

7. While the show cause notice dated 17th December, 2018 was pending before the DDE, the petitioner has been visited with a second show cause notice, dated 24th January, 2019. This show cause notice, undoubtedly, is similar to the show cause notice dated 17th December, 2018 (supra) and referred to a visit, by the officials of the DOE, on 10th December, 2018, at the School. Mr. Gupta submits that this visit was actually made by the Committee on Petitions and was the same visit to which the show cause notice dated 17th December, 2018 made reference.

8. The show cause notice dated 24th January, 2019, however, goes on to refer to a second visit made by the officials of the DOE on 23rd January, 2019 and also contains further allegations, i.e. (i) that the sizes of some of the class rooms of the School, were not as per the seating norms prescribed in the Right to Education Act 2009, which was a mandatory condition of recognition as per Rule 50(x), of the DSEAR (ii) that the evaluation system of the School was not up to the mark, especially in Class XI, (iii) that there were complaints, by the parents, that the School was harassing them and was resorting to

coercive tactics to pressurize the parents, (iv) that the School had exhibited an offensive attitude towards Mrs. Sneh Aggarwal, one of the nominees of the DOE, during her visit to the School on 15th November, 2017, and (v) that the School had again exhibited "non- cooperative attitude", at the time of visit at its premises, by the nominees of the DOE on 23rd January, 2019.

9. This show cause notice further alleges that the shortcomings referred to in the earlier show cause notice dated 17th December, 2018, continue to exist.

10. Admittedly, the show cause notice dated 24th January, 2019 (supra), is still pending adjudication before the competent authority, and no orders, adverse to the petitioner's interests, have been passed therein.

11. Mr. Pramod Gupta submits that he has made a request, to the authority adjudicating the aforementioned show cause notice dated 24th January, 2019, to provide documents necessary for the petitioner to respond to the show cause notice, but that there is no response to the said request. He, therefore, fervently exhorts this Court to direct the authority adjudicating the show cause notice, (i.e. DDE) to supply the said documents, at least, so that the show cause notice could proceed.

12. Mr. Gupta also places reliance on an order, dated 27th April, 2016, passed by a Coordinate Bench of this Court in W.P.(C)

3459/2016 (Maxfort School Rohini v. Lt. Governor Delhi). The said order may be reproduced, in extenso, thus:

"Present writ petition has been filed seeking a direction to respondents to furnish the documents referred to or forming the basis of the issuance of show cause notice dated 08th April, 2016 wherein a reply is sought as to why the petitioner-Private Unaided School be not taken over by Government under Section 20 of the Delhi School and Education Act, 1973 (for short "DSE Act, 1973").

Petitioner further seeks a direction to respondents to provide a personal hearing before passing any order under Section 20 of the DSE Act, 1973.

Mr. Pramod Gupta, learned counsel for petitioner states that petitioner made representations dated 18 th April, 2016 and 22nd April, 2016 requesting respondent No.1 to provide copies of documents mentioned in the aforesaid show cause notice, but no reply has been received till date. He further states that no opportunity of personal hearing has been given to the petitioner.

Mr. Sudheer Nandrajog, learned senior counsel for respondents states that an authorised representative of petitioner-School can inspect the file of Directorate of Education tomorrow from 10.30 a.m. onwards. He further states that the petitioner shall be entitled to take photocopies of documents at the usual cost.

Mr. Gupta assures and undertakes to this Court that a reply to the show cause notice shall be filed on or before 9th May, 2016.

Mr. Nandrajog also states that an oral hearing shall be given to the petitioner on 13th May, 2016 at 11.00 a.m. by the Directorate of Education. He points out that oral hearing shall be given by the Directorate of Education as the order, if any under Section 20 of the DSE Act, 1973, shall be passed by the Directorate of Education itself.

The statements made by both the counsel are accepted by this Court and both parties are held bound by the same.

As the concern of the petitioner stands duly addressed, the present writ petition and applications are disposed of.

Order dasti under signature of Court Master."

13. Mr. Gupta has also placed reliance on the following passage, from the well-known judgment of the Supreme Court in State of Orissa v. Dr. Binapani Dei, AIR, 1967 SC 1269:

"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed; it need not be shown to be

super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

14. The pleas of Mr. Gupta, in my view, do not make a case for this Court to issue any direction, as sought by him, to the authority adjudicating the show cause notice dated 24th January, 2019.

15. The show cause notice dated 24th January, 2019, is not itself under challenge. The manner in which the show cause notice should be adjudicated, which would also include the decision to be taken on the petitioner's request for supply of documents is, at this stage, exclusively within the province of the authority adjudicating the show cause notice. No decision, adverse to the petitioner, even on the said request, has been taken till date. Neither has any order been passed, on the show cause notice, which could be said to be prejudicial to the petitioner in any manner.

16. In these circumstances, I am of the view that this Court cannot monitor adjudication of the show cause notice, directly or indirectly. It would be for the authority adjudicating the show cause notice to decide on the petitioner's request for supply of documents, at the appropriate stage and in accordance with the law.

17. If the petitioner is aggrieved by any decision taken on the show cause notice, its right to challenge the same in accordance with the law

would always stand protected and, therefore, there is no occasion, for this Court, to intervene with the show cause notice which is still pending adjudication.

18. Apropos the judgment in Maxfort School (supra), it is clear, from a reading thereof, that it proceeds on concessions made by learned counsel appearing for the respondents in that case, in view whereof this Court opined that the grievance of the petitioner therein stood redressed. There is, clearly, no expression of opinion, by this Court, in the said order, on whether intervention at the stage of show cause notice was warranted or not.

19. The passage from Dr. Binapani Dei (supra), on which Mr. Gupta relies, sets out well established principles of law, which flow from the basic concepts of natural justice and fair play. There is no reason for this Court to presume, at this stage, that the show cause notice dated 24th January, 2019, would be adjudicated by the DDE, save and except, in consonance with considerations of natural justice and fair play, which, needless to say, would include grant of adequate opportunity to the petitioner.

20. Reserving, therefore, the right of the petitioner to approach this Court, at an appropriate stage and in accordance with the law, in the event of any order, adverse to the petitioner's interest, being passed consequent to the adjudication of the show cause notice dated 24th January, 2019, this Court declines to interfere with the said proceedings at this stage.

21. There is, however, merit in the submission of Mr. Gupta that the allegations in the show cause notice dated 17th December, 2018 overlap with the allegations in the show cause notice dated 24th January, 2019.

22. It is obvious that a citizen cannot be subjected to two adjudicatory proceedings founded on the same allegations. Inasmuch as the show cause notice dated 24th January, 2019 contains allegations in excess of those contained in the show cause notice dated 17th December, 2018, the DOE is restrained from adjudicating the show cause notice dated 17th December, 2018, and would only adjudicate the show cause notice dated 24th January, 2019.

23. Subject to the above caveat, the writ petition is dismissed in limine with no orders as to costs.

C. HARI SHANKAR, J FEBRUARY 15, 2019 dsn