Telangana High Court
Gitanjali Devashray vs The State Of Telangana on 26 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
1
WP_37679_2014
S,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 37679 of 2014
Between:
Gitanjali Devashray and others
... Petitioners
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 26.02.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : Yes
_________________
SUREPALLI NANDA, J
2
WP_37679_2014
S,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 37679 of 2014
% 26.02.2024
Between:
# Gitanjali Devashray and others
... Petitioner
And
$ The State of Telangana and others
... Respondents
< Gist:
Head Note:
!Counsel for Petitioner: Mr Omar A Pasha
^counsel for Respondents: G.P. for Education
? Cases Referred:
1. (2010) 13 scc 427
2. (2001) 5 scc 664
3. (2010) 9 scc 496
4. (1951) scc 1088
5. air 2009 Sup. SC 561
6 (1974) ICR 120 (NIRC)
7. (2010) 3 SCC 732
8. (1978) 1 SCC 248
3
WP_37679_2014
S,J
HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 37679 of 2014
ORDER:
Heard Mr. Omar A Pasha, learned counsel
appearing on behalf of the Petitioners, and learned
Government Pleader for Education appearing on behalf
of respondents.
2. The petitioner approached the Court seeking
prayer as under:
"to issue a Writ or order or direction more particularly
one in the nature of writ of Mandamus declaring the
action of the 3rd Respondent in issuing the impugned
proceedings Rc.No.1164/AD.B/2014-2/A2, dated
13.10.2014 as arbitrary, illegal, unconstitutional and
consequently set aside the same."
3. PERUSED THE RECORD :
A) The order impugned dated 13.10.2014 vide
Rc.No.1164/AD.B/2014-2/A2 passed by the 3rd
respondent, reads as under:
Smt.G.Gita Karan, Director, Gitanjali Group of Schools is
informed that in this office proceedings 1" cited,, notice
was served to you for violation of certain sections of RTE
WP_37679_2014
S,J
Act 2009. You were requested to submit your reply
along with certain information within 07 days from the
date or receipt of the communication. It was also
informed therein that if no reply is received, it will be
construed that you had no explanation to offer and
further action would be taken as per the material
evidence available without further correspondence in the
matter as per RTE Act 2009.
Smt.G.Gita Karan, Director, Gitanjali Group of Schools
has submitted reply to the notice through the reference
2nd, on examining the reply it is found that, she has
accepted regarding conducting of screening procedure
due to non availability of space in her school.
Further it is also informed that, as seen in the website
the following procedure was adopted by the
Management while giving admissions to the students.
(Xvi) Selling of application forms @ Rs 175/-
(xvii) Tests and interviews for admissions in to classes
will be conducted.
(xviii) Collected admission fee Rs 2500/-
(xix) Giving admissions for P.P i.e., Nursery, LKG, UKG,
with tests/Interviews.
(xx) All applicants for N.S and P.P-1 classes will be called
in for an interview, the aim being to admit children who
can display age appropriate skills.
It shows the Management has deviated the following
rules:-
WP_37679_2014
S,J
No Capitation fee and screening procedure for
admission.
Rule 13 (1) of the RTE Act 2009: "No school or person
shall, while admitting a child, collect any capitation fee
and subject the child or his or her parents or guardian to
any screening procedure".
Rule 13 (2) of the RTE Act 2009: Any school or person,
if in contravention of the provisions of sub section (1)-
(g) Receives capitation fee, shall be punishable
with fine which may extend to ten times the
capitation fee charged;
(h) Subjects a child to screening procedure, shall
be punishable with fine which may extend to
Twenty-five thousand rupees for the first
contravention and fifty thousand rupees for each
subsequent contraventions.
In view of the above, you are hereby instructed to pay
fine as contemplated in the above rules within a week
without fail into the Government Treasury to the head of
account as follows:
Primary Education head of Account:
0202 Education, Sports, Art & Culture
01 General Education
MH 101 Elementary Education
SH 81 Other Receipts
001 Other Receipts
You are requested to pay fine of Rs 10,00,000/-
(Rupees Ten Lakhs only) ten times the total amount
WP_37679_2014
S,J
reported to have been collected as capitation fees and
twenty five thousand rupees for admitting the children
by conducting screening procedure. You are requested to
submit compliance report. The entire amount should be
remitted the school head of account within a week days.
If the above fine is not paid by the stipulated time,
further action will be taken action as per the material
evidence available in this office as per the RTE Act 2009
without entertaining any correspondence in the matter.
The receipt of these proceedings should be
acknowledged.
B) The show cause notice dated 24.06.2014 vide
Rc.No.1164/Spl/AD-B/2014-3 issued by the 3rd
respondent, reads as under:
"The Correspondent/ H.M of Gitanjali Devshala,
Balamrai, Sappers Lane, Secunderabad, Hyderabad
District is informed that, this office is receiving
complaints regularly from parents, that the management
is demanding and collecting huge donations and fees Rs
1.00 lakh and above and conducting screening tests to
the children for admission.
The Correspondent/ H.M of Gitanjali Devshala,
Balamrai, Sappers Lane, Secunderabad, Hyderabad
District is further informed that:
(A) Government have enacted Act No.5 of 1983 i.e.,
the Andhra Pradesh Educational Institutions (Regulation
of Admissions and Prohibition of Capitation Fee) Act
WP_37679_2014
S,J
1983 as per said section 5 "The collection of any
capitation fee by any educational institution or by any
person who is in charge or is responsible for the
management of the institution is hereby prohibited"
(B) The Government while issuing, recognition to,
State syllabus, to the private schools prescribing the
conditions that "i) The management should collect the
fee and special fee etc., as prescribed by the Governing
body from time to time (1) The management should not
collect donations either from the students or parents for
admission (iii) They should abide the State Government
Rules, Regulations and orders issued from time to time.
(iv) Provisions of Right to Education Act 2009 shall be
scrupulously followed.
(C) Government of India also enacted Act No.35 of
2009 Le, the Right of Children to free and compulsory
Education Act 2009. As per section 13 "No school gr
person, shall, while admitting a child, collect any
capitation fee and subject the child or his or her parents
or guardian to any screening procedure. Any school or
person, if in contravention of the provisions of Sub
section (1), (a) receives capitation fee, shall be
punishable with fine which may extend to ten times the
capitation fee charged; (b) Subjects a child to screening
procedure, shall be punishable with fine which may
extend to twenty-five thousand rupees for the first
contravention and fifty thousand for each subsequent
contraventions. As per Rule 15 "A child shall be admitted
WP_37679_2014
S,J
in a school at the commencement of academic year or
within such extended period as may be prescribed. As
per the rule 21 (1) (c) "specified in sub-clauses (iii) and
(iv) of clause (n) of section shall admit in classes I, to
extent of at least twenty-five percent of the strength of
that class, children belonging to weaker section and
disadvantaged group in the neighborhood and provide
free and compulsory elementary education till its
completion.
Rule 10(11):That the educational agency shall not
collect fee or donations either in cash or in kind other
that the fee prescribed by the Governing Body from
pupils or parents or any other persons on their behalf,
for any purpose whatsoever.
Rule 20: The Educational agency shall submit the
annual administration report in the prescribed proforma
to the competent authority for every financial year by
the 30th September at the latest, Such report shall be
supported by the audited statement of accounts of the
school duly audited by Chartered Accountant. Separate
accounts shall be maintained for each school.
Similarly the educational agency, which is running
more than one school shall also submit such returns
within the stipulated time to the competent authority."
Therefore, in terms of powers vested as per rule 3
of GO.Ms.No.1, Edn. Dt 01.01.1994 rend with rule 11
and in terms of the provisions of Right to Education Act,
2009, the Correspondent/ H.M of Gitanjali Devshala,
WP_37679_2014
S,J
Balamrai, Sappers Lane Secunderabad, Hyderabad
District is directed to show cause why action shall not be
initiated for withdrawal of permission / recognition for
violation of instructions / rules as per Rule (11) of
G.O.Ms.No. 1 Edn. Dept., Dated 01.01.1994.
The explanation shall reach the undersigned within
15 days from the date o receipt of these proceedings,
failing which further action will be taken without giving
any further correspondence.
C) The explanation of the petitioner dated 07.07.2014
to the show cause dated 24.06.2014 vide
Rc.No.1164/Spl/AD-B/2014-2, reads as under:
"Re: Response to Letter Rc. No. 1164/Spl/AD-B/2014-3
to Gitanjali Devshala School, Balamrai, Secunderabad
In response to your letter dated 24 June 2014 we
wish to respond to the allegations you have raised
regarding our institution Gitanjali Devshala School,
Balamrai, Secunderabad.
1) Capitation and Donations to the tune of lakhs of
rupees - This is a categorically false and baseless
allegation without any merit. I am surprised that until
now you are not aware that fees charged by Gitanjali
School are the most affordable when compared with
other similar institutions in Hyderabad. The first Gitanjali
School was started in 1986 and it has taken the
Institution almost 30 years to grow to a size of 4
WP_37679_2014
S,J
schools. We would have grown at a much faster rate had
we been selling our admissions for one lac rupees per
admission as alleged in your letter. I would also like to
inform you that Gitanjali School has produced the best
ICSE results in Hyderabad and Andhra Pradesh and has
been ranked among the top schools in India year after
year. Such is the quality of education that Gitanjali
maintains and cannot be easily sustained when
capitation fees are charged. We also have among our
parents many government employees including in the
central government, income tax department and within
the education department itself to whom one cannot
charge capitation fees. You may verify this from a
survey any of our parents.
2) Screening of students for admission - Admission
forms are limited based on seats available in the
classrooms and issued on a first come first serve basis.
In order to maintain our quality, we assess our incoming
students to identify the weaker students in the class and
ensure that they are given special remedial attention to
perform at a high standard. Since the ICSE syllabus is of
a higher standard and since children come to our school
from different schools of varying syllabus and standards
and may not have the prerequisite knowledge to be able
to cope with the teaching in that class the children may
be admitted into a lower class.
We receive many more queries for admission than
we are able to admit and are limited by the space
WP_37679_2014
S,J
available in our school. We strictly restrict number of
students in our classes so that we can give individual
attention to our students. We sincerely wish we could
help many more children in our institutions but we are
constrained by our available space and resources. I
would like to bring to your attention that some
disgruntled parents of children who have not secured
admission due to our space limitations have put
pressure on us from higher authorities and even though
we have explained that we do not have additional space
available in our school, they have threatened us that
they will make such complaints to the authorities unless
seats are given to them.
Our school is a private unaided school and does
not follow the state board. We are affiliated to the ICSE
board. As requested we have provided our statement of
accounts duly attested by a Chartered Accountant and
our schedule of fees.
Sir, you being an Officer of our Government and a
fair person please use your own judgment and satisfy
yourself by verifying the truth of these allegations by
surveying our existing parents.
Thanking you for your understanding.
4. The case of the petitioner as per the averments
made in the affidavit filed by the petitioner in support of
the present writ petition, in brief, is as under:
WP_37679_2014
S,J
a) The 3rd petitioner is the Director of Gitanjali Group of
Schools and the 2nd petitioner is one of the school and the 1st
petitioner is Gitanjali Education and Welfare Society.
b) The 1st petitioner society had established various schools
in and around Hyderabad, including the 2nd petitioner school
and the 1st Gitanjali School started way back in the year 1986
and since then the schools run by the 1st petitioner had been
imparting quality education to all the children and contributing
to all round development of the children.
c) The 3rd respondent had issued a notice dated
24.06.2014 to the petitioners to show cause as to why action
should not be initiated for withdrawal of permission/
recognition for violations of instructions/rules as per Rule 11 of
G.O.Ms.No.1 (P.S.2) Education Department, dated 01.01.1994
without making a specific allegation as to the claim or alleged
violation by the petitioners.
d) The allegations levelled in the show cause notice issued
against the petitioners dated 24.06.2014 is twofold; that the
petitioner school is demanding and collecting huge donations
and fee Rs. One lakh and above and are conducting screening
tests to the children and to that effect complaints are being
WP_37679_2014
S,J
received regularly from parents against the management by
the office of the Regional Joint Director of School Education,
Hyderabad.
e) The petitioner submitted a detailed explanation dated
07.07.2014 denying the allegations of the petitioners charging
capitation fee stating that the said charge is baseless. The
petitioners very clearly stated in their explanation, that the
petitioner school has parents who include many Government
Employees working for the Central Government, income tax
department and Education Department itself to whom one
cannot charge any capitation fee. The petitioner school very
clearly stated that a survey could be conducted and the
parents could be enquired to verify and examine this specific
allegation, of charging capitation fee by the petitioners herein.
f) Though there is no specific allegation about the
petitioners school conducting screening test for children for
admission purpose and a reference to that effect is indicated
in the subject of the show cause notice dated 24.06.2014 and
in the first para of the said show cause notice dated
24.06.2014, but the show cause notice dated 24.06.2014
issued by the 3rd respondent, however, does not frame any
WP_37679_2014
S,J
specific charge to that effect. It is further the case of the
petitioner that the petitioner was called upon to submit
explanation within 15 days from the date of the said notice,
failing which action will be initiated against the school.
g) In so far as the screening test is concerned, the
petitioner - Director of Gitanjali Group of Schools in response
to the show cause notice dated 24.06.2014 stated in the
explanation dated 07.07.2014 that in order to maintain
quality, the school assess their incoming students only to
identify the weaker students in the class and ensure that they
are given special remedial attention to perform at a high
standard. But however, without considering the explanation
dated 07.07.2014 furnished by the petitioner, the order
impugned dated 13.10.2014 vide Rc.No.1164/AD.B/2014-3/A2
has been passed against the petitioner by the 3rd respondent.
Aggrieved by the same the petitioner filed the present writ
petition.
5. Learned counsel appearing on behalf of the
petitioner mainly puts forth the following contentions:
a) The show cause notice dated 24.06.2014 is vague.
WP_37679_2014
S,J
b) The show cause notice dated 24.06.2014 does not
indicate specifically the rule alleged to have been violated by
the petitioner and on what basis.
c) The show cause notice dated 24.06.2014 does not spell
out any concrete allegation to which the petitioner's could
have submitted a meaningful reply.
d) The petitioner's had not been put on proper notice and
therefore, the impugned order dated 13.10.2014 is in clear
violation of principles of natural justice.
e) The impugned proceedings calling upon the petitioner to
pay a sum of Rs.10 lakhs as fine is unreasonable, shocking,
without any basis without making any specific allegation that
such a capitation fee was over charged by the school.
6. The respondents filed counter and in particular,
paras 6, 11, 12, 13, 14, 16 and 17, read as under:
"6. It is submitted that oral complaints have received
from the parents of children to the competent
authority/higher authorities in the school education
Department that the management of Gitanjali School is
demanding and collecting huge donations and fees of
Rs.1.00 lakh and above and conducting screening tests
to the children for admission. The Management of the
WP_37679_2014
S,J
School in their website laid down the following procedure
for admissions to the students.
1. Selling of application forms at Rs.175/-
2. Tests and interviews for admission into classes will be
conducted
3. Collected admission fee Rs.2,500/-
• Giving Admission for PP i.e. Nursery, LKG, UKG
with tests/interviews.
• All applications for Nursery Section and PP1
classes will be called for an interview, the aim
being to admit children who can display age
appropriate skills.
11. It is submitted that in terms of the provisions of
Act/Rules made thereunder, the competent authority
(Viz) the Regional Joint Director of School Education,
Hyderabad issued a show cause notice to the
Management of the Gitanjali Schools Secunderabad, why
action should not be taken for withdrawal of
permission/recognition for violation of rules in terms
Rule 11 of G.O.Ms.No.1 Education, dated 1.1.1994, vide
Prol. Dated 24.06.2014.
12. It is submitted that Smt Geeta Kara, Director of
Gitanjali Schools submitted her explanation dated
10.07.2014. In the explanation she has accepted the
conduct of screening test due to non-availability of space
in their schools.
13. It is submitted that the competent authority has
examined her explanation and found that the
explanation is not convincing and accordingly issued
WP_37679_2014
S,J
orders vide Proc.dated 12.10.2014. The petitioner
against the said orders approached this Honorable Court
with the present writ petition.
14. It is submitted that with reference to the contentions
of the petitioner Nos. 1 to 3, the petitioner violated the
provisions of the Andhra Pradesh Educational
Institutions (Regulation of admission and prohibition of
capitation Fee) Act, 1993, the Rules issued in
G.O.Ms.No.1, Education, dated 1.1.1994 as amended
from time to time. Right to children free and compulsory
Education Act, 2009 (Act No.35/2009) and the rule
made there under in G.O.Ms.No.20, Education, dated
03.03.2011, in collection of capitation fee, donations and
in conduct of screening test. The proc. Dated
13.10.2014 issued by the third respondent (viz)
Regional Director of School Education, Hyderabad are in
order and as per rules within the provisions of the
powers vested with him and valid. Therefore, the
contentions of the petitioner are far from truth and
incorrect.
16. It is submitted that with reference to the
contentions in Para 5,6,and 7, of the affidavit, that the
petitioner was given notice by the competent authority
only on receipt of the oral complaints made by the
parents of the children seeking admissions in the
schools managed by the petitioner to him/higher
authorities regarding seeking donations of Rs.1.00 lakh
and conduct of screen tests and after confirming from
WP_37679_2014
S,J
the web site of the school about the admission
procedure vide Prp. Dt. 24-06-2014. In the
explanation given by the petitioner dt. 07-07-2014
she has accepted on the conduct of screen tests.
No school management normally do accept on the
charging of donations and it cannot be proved in
normal course. Therefore the orders issued by the
competent authority vide proc. Dt. 13-10-2014 are
valid and as per rules.
17. It is submitted that, with reference to the contention
of the petitioner at Para 8 of the affidavit, Sec 3(1) of
Right of Child to free and compulsory education Act says
that every child of the age of six to fourteen years shall
have a right to free and compulsory education in a
neighborhood school till completion of elementary
education. And section 13(1) says that no school or
person shall while admitting a child collect any capitation
fee and such the child or his or her parents or guardian
to any screening procedure. The petitioner violated
above provisions of the Act. Therefore she is punishable
under 13(2) of the said Act. Therefore the orders issued
in pro. Dt. 13-10-2014 are within the powers vested to
the competent authority by the Act 35/2009 and the
rules made thereunder. The contention off the petitioner
is therefore not correct and far from truth.
7. The learned Government Pleader appearing on behalf of
the respondents placing reliance on the counter affidavit filed
WP_37679_2014
S,J
by the respondents contends that the petitioner in the
explanation dated 10.07.2014 submitted in response to the
show cause notice dated 24.06.2014 has accepted the conduct
of screening test and further took a specific plea that no
school management normally accepts, on the charge of
donation and therefore, it cannot be proved in normal course
and hence, the order impugned issued by the competent
authority vide proceedings dated 13.10.2014 is in accordance
to the rules in force and the petitioners are not entitled for any
relief as prayed for and the interim orders granted in favour of
the petitioners dated 08.05.2014 need to be vacated.
DISCUSSION AND CONCLUSION
8. The interim order dated 08.12.2014 passed by this
Court, reads as under:
Since the issue involved in these writ petitions is
similar, they are taken up together.
The petitioners suffered orders alleging violation of
Right of Children to Free and Compulsory Education Act,
2009 (for short 'the Act') on the ground that they have
found collecting capitation fee and also conducting
screening test for admission of the students.
Keeping in view the show-cause notices, the
replies of the petitioners and the orders impugned,
prima facie, the collection of capitation fee by the
petitioners does not appear to have been
established and hence imposition of penalty of ten
times in respect of collection of capitation fee,
cannot prima facie be enforced.
WP_37679_2014
S,J
So far as screening test is concerned, the reply of
the petitioners as well as the web site, as mentioned in
the impugned order, show that screening tests are being
conducted. In view of that, under Section 13(2)(b) of
the Act, the fine of Rs.25,000/- for first contravention
would be appropriate.
Pending further orders, the impugned orders
shall remain stayed subject to the condition that
the petitioners in each of the writ petition shall
deposit Rs.25,000/- (Rupees twenty five thousand
only) with the 3rd respondent on or before 12-12-
2014.
Learned Government Pleader takes notice and
seeks time to file counter.
Post after four weeks.
The said interim order dated 08.12.2014 is in force as
on date.
9. In so far as the screening test is concerned, this
Court in its earlier order dated 08.12.2014 very clearly
observed that the petitioner school conducted the
screening test, this Court is not inclined to interfere
with the said finding of this Court.
10. Learned counsel appearing on behalf of the
petitioner also fairly gives up the said plea in so far as
the prayer put forth by the petitioner in that regard
pertaining to the screening test is concerned. In so far
as collection of capitation fee, this Court in its order
dated 08.12.2014 passed in the present writ petition
WP_37679_2014
S,J
observed that keeping in view the show cause notice,
the replies of the petitioners and the orders impugned,
prima facie the collection of capitation fee by the
petitioner does not appear to have been established and
hence, imposition of penalty of 10 times in respect of
collection of capitation fee cannot prima facie be
enforced.
11. A bare perusal of the show cause notice dated
24.06.2014 indicates that there is no specific charge alleged
against the petitioners in so far as collecting donations and fee
of Rs.One Lakh is concerned except stating that the office of
the Regional Joint Director, School Education, Hyderabad had
been receiving complaints regularly from the parents that the
management is demanding and collecting huge donations and
fee of Rs. One lakh and above and conducting screening test
to the children for admission and further the counter affidavit
filed by the respondents in particular, para 16 also
refers to only oral complaints made by the parents of
the children seeking admissions in the schools of the
petitioners herein.
WP_37679_2014
S,J
12. A bare perusal of the order impugned 13.10.2014 does
not indicate any consideration of the explanation dated
07.07.2014 furnished by the petitioner herein in respect of
show cause notice dated 24.06.2014 issued to the petitioner
except stating that the petitioner accepted in her reply dated
07.07.2014 submitted in response to the notice dated
24.06.2014 issued by the 3rd respondent, regarding
conducting of screening procedure.
13. A bare perusal of the counter affidavit also does not
indicate any specific enquiry conducted pertaining to the
allegation of the petitioners' collecting huge donations and fee
of Rs.One Lakh and above from the parents nor is their any
written complaint on record except stating in the counter
affidavit at para 16, that no school management normally
accepts on the charge of donations and the same cannot be
proved. This Court opines that such a stand in the counter
affidavit, cannot be the basis for holding the petitioners guilty
of the allegation of levy of capitation fee and huge donations
being demanded from parents by the petitioners herein.
14. A bare perusal of the order impugned dated
13.10.2014 vide Rc.No.1164/AD.B/2014-2/A2 passed
WP_37679_2014
S,J
by the 3rd respondent herein clearly indicates that the
order impugned is passed without assigning any
reasons except stating that on examining the reply
dated 07.07.2014 of the Director, Gitanjali Group of
Schools in response to the show cause notice dated
24.06.2014 of the 3rd respondent herein it is found that
petitioner had accepted regarding conduct of screening
procedure by the petitioners herein. There is no
discussion in the order impugned dated 13.10.2014 of
the 3rd respondent in so far as the explanation
furnished by the 3rd petitioner dated 07.07.2014 in
response to show cause notice dated 13.10.2014 issued
to the 3rd petitioner herein nor any reasons are
indicated in the said order in arriving at a conclusion
that petitioners received capitation fee from students
and further imposing a fine of Rs. Ten lakhs unilaterally
upon the petitioners stating the said amount is ten
times the total amount reported to have been collected
as capitation fee by the 3rd petitioner herein.
Reason is the soul of justice, reason is the heart
beat of every conclusion, recording of reasons is
WP_37679_2014
S,J
principles of natural justice as it ensures transparency
and fairness in decision making.
15. Few Judgments of the Apex Court on the point of
recording of reasons.
a. The Apex Court in the judgment reported in
(2001) 5 SCC 664 in Tandon Brothers Vs. State of West
Bengal & Others at para 34 observed as under :
"Governmental action must be based on utmost
good faith, belief and ought to be supported with reason
on the basis of the State of Law - if the action is
otherwise or runs counter to the same the action cannot
but be ascribed to be malafide and it would be a plain
exercise of judicial power to countenance such action
and set the same aside for the purpose of equity, good
conscience and justice. Justice of the situation demands
action clothed with bonafide reason and necessities of
the situation in accordance with the law."
b. The Apex Court in the judgment reported in
(2010) 9 SCC 496 in Kranti Associates Private Limited &
Another v. Masood Ahmed Khan & Others at para 47
observed as under :
Para 47 : Summarising the above discussion, this Court
holds:
WP_37679_2014
S,J
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons
in support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice must not
only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a
valid restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant grounds
and by disregarding extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-making process
as observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review
by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional governance
is in favour of reasoned decisions based on relevant
facts. This is virtually the lifeblood of judicial decision-
making justifying the principle that reason is the soul of
justice.
WP_37679_2014
S,J
(i) Judicial or even quasi-judicial opinions these
days can be as different as the judges and authorities
who deliver them. All these decisions serve one common
purpose which is to demonstrate by reason that the
relevant factors have been objectively considered. This
is important for sustaining the litigants' faith in the
justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making process
then it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or to
principles of incrementalism.
(l) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of reasons or
"rubber-stamp reasons" is not to be equated with a valid
decision-making process.
(m) It cannot be doubted that transparency is the
sine qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but also
makes them subject to broader scrutiny.
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decision-making,
(o) In all common law jurisdictions judgments play
a vital role in setting up precedents for the future.
WP_37679_2014
S,J
Therefore, for development of law, requirement of giving
reasons, for the decision is of the essence and is
virtually a part of "due process".
c. The Supreme Court in case of Commissioner
of Police, Bombay Vs. Gordhandas Bhanji reported in
(1951) SCC 1088 observed as under :
"We are clear that the public orders, publicly
made, in exercise of a statutory authority cannot be
construed in the light of explanations subsequently given
by the Officer making the order of what he meant, or of
what was in his mind, or what he intended to do. Public
orders made by public authorities are meant to have
public effect and are intended to effect the acting's and
conduct of those to whom they are addressed and must
be construed objectively with reference to the language
used in the order itself.
d. Former Chief Justice of India, Late Justice
Y.V. Chandrachud in judgment reported in (1978) 1 SCC
248 in Menaka Gandhi Vs. Union of India held that law
cannot permit any exercise of power by an executive to
keep the reasons undisclosed if the only motive for
doing so is to keep the reasons away from judicial
scrutiny.
WP_37679_2014
S,J
e. The Apex Court in case of Steel Authority of
India Limited Vs. Sales Tax Officer, Rourkela-I Circle,
AIR 2009 Supplement SC 561 observed as under :
"Reason is the heart beat of every
conclusion. It introduces clarity in an order and
without the same it becomes lifeless".
f. In Alexander Machinery (Dudley Limited) Vs.
Crabtree reported in (1974) ICR 120 (NIRC) it was
observed
"Failure to give reasons amounts to denial of
justice. Reasons are live links between the mind of
the decision-taker to the controversy in question
and the decision or conclusion arrived at. Reasons
substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the
decision reveals the "Inscrutable face of the
sphinx" it can, by its silence, render it virtually
impossible for the Courts to perform their
Appellate function or exercise the power of judicial
review in adjudging the validity of the decision."
g. The Apex Court in judgment reported in
(2010) 3 SCC 732 in Secretary and Curator, Victoria
Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity &
Others at para 41 observed as under :
WP_37679_2014
S,J
"Reason is the heart beat of every
conclusion, it introduces clarity in an order and
without the same, it becomes lifeless. Reasons
substitute subjectivity by objectivity. Absence of
reasons renders the order unsustainable
particularly when the order is subject to further
challenge before a higher forum".
16. A bare perusal of the show cause notice dated
24.06.2014 issued by the 3rd respondent clearly
indicates that the same is vague, and the same is not
clear on the charges alleged against the 2nd petitioner
and in the present case it is evident that the 3rd
respondent prejudged the issue against the petitioners
at the threshold of show cause notice itself.
17. The Apex Court in the Judgment reported in
(2010) 13 SCC 427 in Oryx Fisheries Pvt., Ltd., Vs.
Union of India & Others, in its Head note duly referring
the relevant paras of the said judgment, observed as
under :
"It is well settled that a quasi-judicial authority, while
acting in exercise of its Statutory power must act fairly
and must act with an open mind while initiating a show-
cause proceeding. A show-cause proceeding is meant to
WP_37679_2014
S,J
give the person proceeded against a reasonable
opportunity of making his objection against the
proposed charges indicated in the notice. (Para 24).
At the stage of show-cause, the person
proceeded against must be told the charges
against him so that he can take his defence and
prove his innocence. At that stage the authority
issuing the charge-sheet, cannot, instead of
telling him the charges, confront him with definite
conclusions of his alleged guilt. If that is done, as
has been done in the present case, the entire
proceeding initiated by the show-cause notice
gets vitiated by unfairness and bias and the
subsequent proceedings become an idle
ceremony. (Para 27)
Justice is rooted in confidence and justice is the
goal of a quasi-judicial proceeding also. If the
functioning of a quasi-judicial authority has to inspire
confidence in the minds of those subjected to its
jurisdiction, such authority must act with utmost
fairness. Its fairness is obviously to be manifested by
the language in which charges are couched and
conveyed to the person proceeded against.
In the present case, from the show-cause notice it
is clear that the third respondent, Deputy Director,
MPEDA HAS demonstrated a totally closed mind at the
stage of show-cause notice itself. Such a closed mind is
WP_37679_2014
S,J
inconsistent with the scheme of Rule 43 of the MPEDA
Rules. (Para 29).
It is true that the show-cause notice cannot be
read hyper technically and it is well settled that it is to
be read reasonably. But, while reading a show-cause
notice the person who is subject to it must get an
impression that he will get an effective opportunity to
rebut the allegations contained in the show-cause notice
and prove his innocence. If on a reasonable reading of a
show-cause notice a person of ordinary prudence gets
the feeling that his reply to the show-cause notice will
be an empty ceremony and he will merely knock his
head against the impenetrable wall of prejudged
opinion, such a show-cause notice does not commence
a fair procedure especially when it is issued in a quasi-
judicial proceeding under a statutory regulation which
promises to give the person proceeded against a
reasonable opportunity of defence. (para 31)
Therefore, while issuing a show-cause
notice, the authorities must take care to
manifestly keep an open mind as they are to act
fairly in adjudging the guilt or otherwise of the
person proceeded against and specially when the
authority has the power to take a punitive step
against the person after giving him a show- cause
notice. (para 32)
The principle that justice must not only be
done but it must eminently appear to be done as
WP_37679_2014
S,J
well is equally applicable to quasi-judicial
proceeding if such a proceeding has to inspire
confidence in the mind of those who are subject to
it. (para 33)"
18. A bare perusal of the order impugned dated 13.10.2014
vide Rc.No.1164/AD.B/2014-2/A2 does not discuss about the
explanation dated 07.07.2014 in reference to the specific
allegation of collection of huge donations and fee of Rs. One
lakh and fine from parents nor it gives any reasoning for
having arrived at the said conclusion, there is no basis or
material on record even as per the order impugned dated
13.10.2014 which indicates that the allegation of the
petitioners having charged huge donations from the parents as
having been established and the said allegations even as per
the averments made at para 16 of the counter filed by the
respondents is based on oral complaints of parents made to
the office of the 3rd respondent herein. This Court is of the
firm opinion as rightly observed in the order of this Court
dated 08.12.2014 and on perusal of the show cause notice
dated 24.06.2014 and the reply dated 07.07.2014 of the
petitioner to the show cause notice dated 24.06.2014 and the
impugned order dated 13.10.2014 vide Rc.No.1164/
WP_37679_2014
S,J
AD.B/2014-2/A2 passed by the 3rd respondent, the collection
of capitation fee by the petitioners has not been established.
18. Taking into consideration the aforesaid facts and
circumstances and the law laid down by the Apex Court
in various judgments (referred to and extracted above)
and which are again enlisted hereunder:
1. Tandon Brothers v State of West Bengal & others
reported in (2001) 5 SCC 664.
2. Kranti Associates Private Limited & another v Masood
Ahmed Khan & others reported in (2010) 9 SCC 496.
3.Commissioner of Police, Bombay v Gordhandas Bhanji
reported in (1951) SCC 1088.
4. Menaka Gandhi v Union of India reported in (1978) 1
SCC 248.
5. Steel Authority of India Limited v Sales Tax Officer,
Rourkela-I Cirle, AIR 2009 Supplement SC 561.
6. Alexander Machinery (Dudley Limited) v Crabtree
reported in (1974) ICR 120 (NIRC)
7. Secretary and Curator, Victoria Memorial Hall v
Howrah Ganatantrik Nagrik Samity and others reported
in (2010) 3 SCC 732.
8. Oryx Fisheries Pvt. Ltd v Union of India and others
reported in (2010) 13 SCC 427.
And in the light of the discussion and conclusion as
arrived at as above, his writ petition is allowed and the
order impugned dated 13.10.2014 vide Rc.No.1164
WP_37679_2014
S,J
/AD.B/2014-2/A2 passed by the 3rd respondent is set
aside to the extent of directing the 3rd petitioner to pay
Rs.10 lakhs (Rupees ten lakhs only) ten times the total
amount reported to have been collected as capitation
fees. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand
closed.
__________________
SUREPALLI NANDA, J
Dated: 26.02.2024
Note: L.R. copy to be marked
b/o
kvrm
