Calorx Education And Research ... vs Director Of Primary Education
2021 Latest Caselaw 18333 Guj

    C/SCA/13210/2021                             JUDGMENT DATED: 13/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13210 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed                 No
     to see the judgment ?

2    To be referred to the Reporter or not ?                          No

3    Whether their Lordships wish to see the fair copy                No
     of the judgment ?

4    Whether this case involves a substantial question                No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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            CALORX EDUCATION AND RESEARCH FOUNDATION
                              Versus
                 DIRECTOR OF PRIMARY EDUCATION
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Appearance:
MR DHAVAL DAVE, SENIOR ADVOCATE , MR BIJAL CHHATRAPATI , MR
ARVIND PARIKH FOR J SAGAR ASSOCIATES(8162) for the Petitioner(s)
No. 1
MR KM ANTANI (AGP) AND MR AAYAN PATEL, (AGP) for the
Respondent(s) No. 1, 2
MR HS MUNSHAW for the Respondent(s) No. ,3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 13/12/2021

                            ORAL JUDGMENT

1. Heard learned Senior Advocate Mr. Dhaval Dave with learned advocates Mr. Bijal Chhatrapati and Mr. Arvind Parikh for J Sagar Associates for the

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petitioner, learned advocate Mr. H.S. Munshaw for respondent no.3 and learned Assistant Government Pleaders Mr. K.M. Antani and Mr. Aayan Patel for respondents Nos. 1 and 2.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Aayan Patel waives service of notice of rule on behalf of learned Assistant Government Pleader Mr. K.M. Antani for respondents Nos. 1 and 2 and learned advocate Mr. H.S. Munshaw waives service of notice of rule on behalf of respondent no.3-District Primary Education Officer.

3. Having regard to the controversy involved in this petition which is in a very narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

4. By this petition under under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(a) Issue an appropriate writ, order or direction, including a writ of certiorari and/or of mandamus for quashing and setting aside the impugned orders dated 17/08/2021, passed by Respondent no.1 in AHM/100054 and Appeal Nos. AHM/100055 dated 04/02/2021 and 06/02/2021 respectively;

(b) Pass an order for costs against the Respondents.

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(c) Pass such further order or orders and/or direction (s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

5. Brief facts of the case are as under :

5.1) On 29th December, 2020 an advertisement was published by the respondent no.1 - Director of Primary Education in local newspapers, inviting applications for starting new schools for the academic year commencing from June 2021. Pursuant to such advertisement, the petitioner filed two separate online applications bearing nos. 771063 and 319245 on 8th January, 2021 for opening a new school. Application No. 771063 was filed for opening classes 1 to 5 and Application No. 319245 was filed for opening classes 6 to 8. The respondent no.3 - the District Education Officer undertook inspection of the school on 27th January, 2021 and requested for some additional documents which were supplied by the petitioner on 29th January, 2021.

5.2) Respondent no.3 vide two orders of even date dated 30th January, 2021 rejected the two applications on the ground that the petitioner did not comply with order of respondent no.1 dated 6th October, 2020 requiring the petitioner to pay fine of Rs. 50 lakhs. It is the case of the petitioner that no opportunity of hearing was provided to the petitioner and therefore, there was breach of principles of natural

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justice.

5.3) Being aggrieved by the orders passed by respondent no.3, the petitioners preferred Appeal No. AHM/100054 on 4th February, 2021 and Appeal No. AHM/100055 on 6th February, 2021 before the respondent no.1.

5.4) On 19th February, 2021 hearing took place where the petitioner made oral submissions and also submitted written submissions in support of such appeals.

5.5) It is the case of the petitioner that respondent no.1 took no steps within a period of two months from the date of its presentation as is required as per section 40-A(8) of the Gujarat Primary Education Act, 1947 (For short "the Act, 1947") and after a prolonged gap of nearly five months, on 7th July, 2021 the respondent no.1 raised a query calling for an affidavit to be filed regarding the management of the proposed school, which the petitioner filed on the same date.

5.6) On 14th July, 2021 respondent no.1 again raised queries about the registered land on which the school was to be started which was replied by the petitioner on 15th July, 2021 and on 19th July, 2021.

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5.7) On 19th July, 2021, respondent no.1 raised further queries regarding the land which the petitioner replied on 20th July, 2021.

5.8) It is the case of the petitioner that on 24th July, 2021 respondent no.1 also made verbal inquiries which the petitioner replied on 26th July, 2021.

5.9) The respondent no.1 vide orders of even date dated 17th August, 2021 rejected the appeals filed by the petitioner relying upon the District Education Officer's letter dated 30th July, 2021. Being aggrieved by the said orders, the petitioner has preferred the present petition.

6. Learned Senior Advocate Mr. Dave submitted that respondent no.3 passed the impugned orders of even date dated 30th January, 2021 solely upon the ground of non payment of penalty of Rs. 50 lakhs imposed upon the petitioner and non furnishing of the receipt of the same as per order dated 6th October, 2020. It was submitted that the petitioner had already paid the amount of penalty imposed vide order dated 6th October, 2020 and pursuant to one of the conditions of the said order permitting the petitioner to make applications for the new school from the new academic year, the petitioner also filed the applications for starting the school.

C/SCA/13210/2021 JUDGMENT DATED: 13/12/2021

6.1) It was further pointed out that the appellate authority in the impugned orders of even date dated 17th August, 2021 has travelled beyond the scope of the appeals as the petitioner has fulfilled all the conditions as laid down under section 40A of the Act, 1947 and after recording the fact that the petitioner has deposited amount of Rs. 50 lakhs on 4 th February, 2021, rejected the appeals on the ground that by letter/order dated 30th July, 2021 the District Education Officer has imposed the penalty of Rs. 1 lakh upon the petitioner together with further penalty of Rs. 10,000/- per day to continue the school without permission contrary to section 18 of Right to Education Act, 2009 (For short, "the RTE Act"). It was therefore, submitted that the appellate authority without giving any opportunity of hearing to the petitioner with regard to the compliance of the letter/order dated 30th July, 2021 and only on the basis of the reports of even date, passed the impugned orders rejecting the appeals filed by the petitioner challenging the orders passed by the District Education Officer to start the schools as per the permission given by the State Government while imposing penalty of Rs. 50 lakhs vide order dated 6th October, 2020.

6.2) Learned Senior Advocate Mr. Dave has also pointed out that the petitioner is

C/SCA/13210/2021 JUDGMENT DATED: 13/12/2021

intending to run the school as a franchise of Delhi Public School society and has also produced on record a copy of such Joint Venture agreement between the Delhi Public School Society and the petitioner which was entered into previously, to point out that entire control and management of the running of the school by the petitioner shall be with the Board of Management as per the terms of the agreement.

7. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani appearing for the respondent no.1 Director of Primary Education submitted that considering the conduct of the petitioner as per the letter/order dated 30th July, 2021 passed by the District Education Officer to continue to operate the school without recognition is a very serious issue and only on that ground the appellate authority has rightly rejected the appeals filed by the petitioner.

7.1) It was further submitted by learned AGP Mr. Antani that the petitioner has not denied the fact that the order dated 30th July, 2021 has attained finality and the contention on behalf of the petitioner that such orders were never served upon the petitioner and hence cannot be relied upon to pass the impugned orders cannot be accepted as the petitioner was aware about

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such order and therefore, the appellate authority was justified in considering the said order while rejecting the appeals filed by the petitioner as the petitioner has violated the provisions of the Act, 1947 as well as the Right to Education Rules,2011 (For short "the RTE Rules").

7.2) It was further submitted by learned AGP Mr. Antani that the petitioner is not entitled to the benefits of principles of natural justice when it is not in dispute that the petitioner has violated the mandatory RTE Rules as per the letter/order dated 30th July, 2021 and therefore, it cannot be said that consideration of such letter/order dated 30th July, 2021 by the appellate authority was beyond the scope of the appeals because when the District Education officer considered the applications of the petitioner in the month of January, 2021 the letter/order dated 30th July, 2021 was not in existence and therefore, there was no occasion for the the District Education Officer to consider such order.

7.3) It was therefore, submitted that when the appellate authority passed the impugned orders rejecting the appeals of the petitioners, the letter/order dated 30th July, 2021 was in existence and within the knowledge of the petitioner and therefore, the impugned orders

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are on the basis of such subsequent event which is bound to be taken into consideration by the appellate authority as the appeals were continuation of the proceedings initiated before the District Education Officer and when the order of District Education Officer has merged with the orders of the appellate authority, the appellate authority was justified in considering the letter/order dated 30th July, 2021 passed against the petitioner by the District Education Officer while rejecting the appeals vide orders dated 17th August, 2021.

7.4) It was further submitted by learned AGP Mr. Antani that the breach of the principles of natural justice cannot be applied in the facts of the case as there is no straight-jacket formula for application of such principles and applying such principles would result into a futile and empty formality, as in the facts of the case, letter/order dated 30th July, 2021 was within the knowledge of the petitioner and therefore, the petitioner now cannot raise an issue about the appellate authority relying upon such letter/order.

7.5) It was therefore, submitted that serving the said orders again upon the petitioner would be an empty formality and therefore, the appellate authority was duty bound to consider such order as it was a vital

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aspect for considering whether to grant approval/recognition to the petitioner to run the school under the provisions of the Act, 1947 read with the RTE Rules.

7.6) It was also pointed out by the learned AGP Mr. Antani that merely because the provisions of section 40A(2) of the Act, 1947 are complied with the petitioner is not entitled to recognition contrary to the provisions of section 13 of the Right of Children to Free and Compulsory Education Rules, 2012 (For short "the Rules, 2012").

7.7) Reference was made to Rule 13 of the Rules, 2012 which pertains to recognition of the schools and more particularly, Sub-rule (5) of Rule 13 which provides that after the inspection referred to in Sub-rule(4) is carried out, the inspection report shall be placed by the competent authority in public domain i.e. website of the education department and schools found to be conforming to the norms, standards shall be recognised by the competent authority in Form No. 2 within a period of 30 days from the date of inspection. It was therefore, submitted that the provisions of section 40A(2) cannot prevail over the Central Act and the Rules and therefore, both has to be complied with by the petitioner and when there is breach of RTE Rules, the petitioner is not entitled to

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recognition and therefore, the appellate authority has rightly rejected the applications for recognition filed by the petitioner to run the school.

8. Learned advocate Mr. H.S. Munshaw has adopted the submissions made by the learned AGP Mr. Antani.

9. Having heard the learned advocates for the respective parties and having perused the documents produced on record, it appears that the petitioner has complied with all the conditions prescribed by the respondents to run the school as noted by the District Education Officer in orders dated 30th January, 2021 and the recognition was rejected only on the ground that the petitioner failed to produce the receipt of payment of penalty of Rs. 50 lakhs imposed upon the petitioner vide order dated 6th October, 2020 which the petitioner was supposed to deposit by 30th January, 2021 and thereafter after a prolonged gap of about 5 months, the respondent no.1 raised a query calling for an affidavit to be filed with regard to the management of the proposed school which was submitted by the petitioner and after meeting with all the queries raised by respondent no.1, impugned orders were passed relying upon the letter/order dated 30th July, 2021 passed by the District Education Officer for violation of Rule

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18(5) of the RTE Rules.

10. It is not emerging from the record that at any point of time, respondent no.1 called upon the petitioner that letter/order dated 30th July, 2021 would be relied upon to deny the recognition of the petitioner nor the petitioner was put to notice that such order would dis- entitle the petitioner from being granted the recogniton by the authority under the provisions of the Act, 1947 read with RTE Rules. Respondent no.1 - appellate authority has relied upon the letter/order dated 30th July, 2021 without the knowledge of the petitioner as it is not denied in the affidavit filed on behalf of the respondent no.1 that the said order was placed on record so as to call upon the petitioner to justify or provide explanation for the same. As it emerges from the record, the petitioner has already complied with the letter/order dated 30th July, 2021 and if the petitioner would have been called upon by respondent no.1, petitioner would have placed such facts before respondent no.1.

11. The petitioner has also explained in this petition as to under what circumstances the school was run without recognition inasmuch as in view of Covid-19 pandemic situation, the academic session was extended and therefore, the petitioner was compelled to run the school beyond April, 2021 and for that the petitioner

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has already paid the penalty as levied by the letter/order dated 30th July, 2021 so as to save academic year of the students studying in the school which was run by the petitioner.

12. In view of the foregoing reasons, facts and circumstances, as the impugned orders are passed solely on the basis of letter/order dated 30 th July, 2021 passed by the District Education Officer, the same cannot be sustained and are accordingly quashed and set aside. Respondent no.3 is directed to pass necessary orders for recognition of the school to be run by the petitioner for the academic years 2022-2023 within four weeks from the date of receipt of this order.

13. The petitioner is directed to execute fresh Joint Venture agreement with Delhi Public School Society to run the school and place it before the authority within a period of two weeks from today.

14. Petition is accordingly disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR