Children’S Education Trust Of India vs Union Of India (UoI) [Along With W.P. (C) … on 8 August 2005

Delhi High Court
Children’S Education Trust Of India vs Union Of India (Uoi) [Along With W.P. (C) … on 8 August, 2005
Equivalent citations: 123(2005)DLT20, 2005(84)DRJ110
Author: Vikramajit Sen
Bench: Vikramajit Sen

JUDGMENT

Vikramajit Sen, J.

1. The question that arises in these writ petitions is whether the Central Academy Senior Secondary School, Delhi, the Management of which was taken-over under Section 20 of the Delhi School Education Act, 1973 (hereinafter referred to as `the DSE Act’) by Orders dated 3.7.1996 passed by the Lt. Governor, NCT of Delhi must perforce now be handed back to the Body from which it was taken-over. The situation has been considerably complicated by the fact that there is a controversy as to who is truly representative of erstwhile Body which was managing the Central Academy Senior Secondary School.

2. It is common ground that a Trust in the name and style of Children’s Education Trust of India had been established by two brothers, namely, Shri S.N. Chaturvedi and Shri H.N. Chaturvedi, but these brothers have now fallen out and have initiated litigation against each other. Each of them asserts that he is the proper person to represent the Trust and the Management Committee of the said School. Since petitions have been filed by both the brothers, purporting to act on behalf of the Management/Trust, the two warring groups shall be referred to by their individual names. The Parents Teachers Association of the School has also filed writ petitions with the objective of resisting the handing back of the school to either of these brothers, and further praying that the School should continue to run as a Government School, which is the reality for the last decade.

3. A Division Bench of this Court has passed a detailed judgment entitled Central Academy Sr. Secondary School v. Lt. Governor and Ors., (DB) in which the take-over of the Management of the School under Section 20 of the DSE Act had been upheld. That Judgment was unsuccessfully assailed in the Hon’ble Supreme Court. In giving a brief history of the litigation it would, therefore, be most advisable and appropriate to narrate the facts of the dispute from the Judgment of the Division Bench itself, as this narration is now beyond the pale of contradiction:

4. In the annexure appended to the impugned order which contains the reasons, it is stated that the management has failed to run the school in the best interests of education of children and the conditions prevailing in the school need immediate intervention. A list of deficiencies and discrepancies found in the functioning of the school is set out:

“(a) There is no properly constituted Managing Committee as required in pursuance of provision of Rule 59 to shoulder the responsibilities and duties so imposed in pursuance of Rules 181 to 185 of Delhi Education Rules, 1973 and as a result the school is not being run in the best interest of education of children and for better organisation and development of school eduction in Delhi. The Managing Committee has failed to allow school to function normally and has caused a situation by which the normal and smooth functioning of the school has been hampered. The Managing Committee has failed to comply with provision of Delhi School Education Act and Rules, 1973 particularly with regard to the condition of recognition of the school. It has also filed to provide reasonable facilities for the inspection of the school and also for the inspection of account books, registers and other documents. The affairs of the school are being conducted in such a way which adversely affected the interest of school.

(b) The Managing Committee has failed to submit any assurance for the improvement in school building, library, laboratory, playground, toilets and other structure which is found is dilapidated condition.

(c) There is also in fighting between the members of the Managing Committee and the affairs of the school are being conducted for personal gains by Sh.S.N. Chaturvedi and Sh. S. Chaturvedi and Sh. Surjeet Singh etc.

(d) The Managing Committee has failed to deal with the service condition of the employees in accordance with relevant rules. The services of various employee have been dispensed with, without following the due procedure and in violation of the provisions of Section 8 of the Act read with Rules 118 to 120 of the Rule.

(e) There is no assurance for improvement in the enrollment of students which has decreased drastically and the senior secondary classes have been closed without prior permission of the department. And as such, the allegations so made in the Show Cause Notice No. SW-119/95/170 dated 30.8.95 for the default of various provisions of Delhi School Education Act, 1993 and the Rules made there under stand proved….

7. As the management claimed compliance with the objections and directions, another inspection was made for `verifying’ the facts, notice of inspection was given that inspection will be conducted on 10.11.95 and, at petitioner’s request, changed to 17.11.95. This inspection was conducted to verify the contents of the reply to the show cause notice. A final report was prepared on 22.11.95. This inspection revealed that although the initial scheme of the Management was approved by the Competent Authority, the constitution of the Managing Committee was not according to the scheme, no records were made available in regard to proper constitution of the Managing Committee over 3 years. Time was given on 17.11.95 till 21.11.95 for furnishing document. No documents were submitted till 6 p.m. on 21.11.95. The respondent came to the conclusion that the school was not in a position to shoulder the responsibility and duties envisaged in Rules 181 to 185 of the rules. The school is located in prime area and the respondent had suspicion that probably the management wants to close the school and use the land for other purposes, other than the purpose for which the land was allotted. It was also noticed that the management had abolished 11th and 12th Casses, without prior approval of the Directorate of Education and the number of students was being systematically reduced. The reply also says that in the previous year, the management did not deliberately take new admissions in Class XI, as a result Class XI was closed and only those students who were promoted from Class XI to Class XII was there in Class XII. So far as Class X students were concerned, they were given transfer certificate even though no parent wanted to withdraw students for Class XI. In fact, deliberate attempt was made to see that recognition was withdrawn so that the land allotted which was prime land could be used for commercial activity. It was stated once the school is taken over by the Administration, the Administration will make its arrangements to meet the financial requirements to run the school. There is no violation of natural justice as repeated opportunities were given.

20. It is important to note that this inspection for verifying the replies to show cause notice was done in the presence of Mr. S.N. Chaturvedi, Manager, Smt. Sunita Chaturvedi, so-called Principal, daughter of Mr. S.N. Chaturvedi, Mr. Ashok Chaturvedi, son of Mr. S.N. Chaturvedi described as Administrative Officer. Eight senior officers of the Department were present. In regard to points (i) to (xiii) raised in the show cause notice, factual findings are given seriatum:

(i) Though scheme of management was approved by the Competent Authority, the constitution was not as per the scheme. No records were made available in regard to proper constitution of Managing Committee for previous 3 years. Thus school is not in a position to shoulder responsibilities and duties as per Rules 181 to 185.

(ii) It was found that no record of elections of the Managing Committee held and maintenance of Minutes of the Committee were made available for 3 years.

(iii) Recruitment rules were not followed. Service books are not maintained properly. Some were over-aged. No Government nominee was present at selection of Ms. Sunita Chaturvedi as Principal. School did not seek approval of registration of her father Mr. S.N. Chaturvedi who was Principal. Mr. Ashok Chaturvedi is shown as TGT but is serving as Administrative Officer.

(iv) School did not submit any document under Rule 180 for 3 years, regarding fee and other charges. Prospectus was merely changed in ink. No documents were submitted showing utilisation of funds for development.

(v) Library facilities remained inadequate.

(vi) School play grounds are poorly maintained. There is violation of Rule 51 (i) to (v). School has only one PET, and his eligibility could not be verified for want of records.

(vii) School authorities suspended 3 teachers without prior approval of Competent Authority. School filed CWP 2926/94 and also suit for injunction and damages. (School does not deny/absence of approval).

(viii) Lack of discipline which cannot conducive to orderly behaviors among students was revealed.

(ix) No facilities made available as required by Section 24(2) as several records were not given by the school during inspection.

(x) The payment of Bonus, DA, allowances was examined by the FAO and he had given his report.

(xi) It is to be stated that “Sh. S.N. Chaturvedi, his son Sri Ashok Chaturvedi, daughter Sunita Chaturvedi and brother, Sh. H.N. Chaturvedi are found to be holding different capacities in the school viz., Chairman/Principal/Manager/Teacher etc. at different points of time, which is indicative of the fact that the school is being run for personal gain and that in fighting to grab the control of affairs of the school for Financial benefits has made the conditions in serviceable.”

(xiii) School is not being managed in accordance with scheme of management.

In addition, it was found that the enrollment of student has drastically gone down and new admissions are being deliberately avoided as reflected in the inspection reports. It was pointed out that on 22.11.95, the date of the report, certain fresh documents were given by the school authorities but as they were never given earlier during the previous inspections on 26.10.94 and 20.2.95, they did not lend any credibility. They were however forwarded to the Deputy Director. This is the III report but is one made for verification of the reply to the show cause notice, as stated earlier.

26. It is argued that when the petitioner was requesting for permission to closing, instead of accepting the same, the authorities decided to issue show cause notice for take over. In our view, the petitioner does not have an absolute right to close down the school. It is for the authorities to consider whether having regard to the locality where the school is functioning and the needs of the residents of the area and having regard to the plight of the students and teachers to decide whether the management could be permitted to close down the school and it could be managed better and brought to normalcy and further improved. A point was raised that in the Minutes, the signature of a person is found who was not an officer at the relevan time. On this issue, there is no pleading and further petitioner, after perusing the record of the department, was trying to raise all new issues from time to time. It was then contended that the ground that Mr. Chaturvedi was trying to close down the school for personal gain for selling the land is not based on any material. We are of the view that this was an inference drawn from the overall facts, correspondence and it cannot be said that the inference is unwarranted. If there was no good reason for the attempt at closure of the school or for creating circumstances to close down certain classes or reduce admissions, a suspicion legitimately arises as to the motives of the petitioner. In any event, even if one reason is incorrect, the order is based on various other relevant grounds and is not vitiated. It was argued that the Lt. Governor has to see the existing composition of the governing body and not how it was or whether it was defective. This is an argument on the sufficiency of he material. Then the argument of school autonomy is raised. It is true certain amount of autonomy is necessary but this is subject to regulations by the State. Reliance is placed on the decision in The Delhi Ex. Servicemen Co-operative Multipurpose Transport Society Ltd. v. The Delhi State Transport Authority, Delhi and Ors., 2nd 1971 (2) Delhi 642 but we are for the view that the same is not applicable for the reasons already given.

27. We may also notice an intervention application, bearing CM No. 6500/96 filed by the Children Education Trust through its Executive Trustee, Dr. H.N. Chaturvedi. Dr. H.N. Chaturvedi happens to be the brother of Shri S.N. Chaturvedi of the Central Academy Senior Secondary School, the petitioner herein. It is claimed in the intervention application that the trust is running 12 schools throughout the country and had established the petitioner Academy in Delhi. Mr. S.N.Chaturvedi had been appointed the Principal of the petitioner Academy by the Trust. Allegations are made in the application regarding mismanagement of the Academy and misappropriation and embezzlement of funds by S.N. Chaturvedi and others. It is claimed that Mr.S.N. Chaturvedi, retired in January, 1995 and handed over charge and the Trust had appointed a New Principal. It is further alleged that Mr. S.N. Chaturvedi, along with Mr. K.C.Gautam, illegally changed the Managing Committee of the school and dislodged the Principal despite having retired as Principal and having ceased to be a Trustee of the Children Education Trust. The intervenor-applicant states that they have made representations to the Director of Education and had also instituted legal proceedings for restraining Shri S.N. Chaturvedi, Shri K.C. Gautam and others from interfering in the Management of the School. The applicant Trust has also offered to invest substantial sums for improving the Academy, raising further construction and acquisition of furniture, equipment, etc. The allegations in the application have been denied in the reply filed on behalf of the petitioner.

4. Madan Bhatia, learned Senior counsel appearing on behalf of Shri S.N. Chaturvedi, has relied on the following proposition of law articulated in Express Newspapers Pvt. Ltd. v. Union of India, , to the effect that ‘the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts ….’ Referring to its previous decision in Wazir Chand v. State of H.P., and Ram Prasad Narayan Sahi v. State of Bihar, Mr. Bhatia emphasised that the impugned action of the Authorities was akin to ‘highly discriminatory and autocratic act which deprives a person of the possess on of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. ….’

5. Mr. Bhatia has concentrated his objection on the following Memo dated 15.3.2002:

GOVERNMENT OF NATIONAL CAPITAL TERRItorY OF DELHI DIRECtorATE OF EDUCATION OLD SECRETARIAT: DELHI-110054 No. 219 Dated: 15.3.2002 MEMO Whereas the Central Academy School, Sect. XIII, R.K. Puram was continued to be taken over for the 5th year up to 31.3.2002 vide order No. 290-293 dated 23.3.2001.

Whereas the maximum period permissible under the Rules for the department to take over a school is for 5 years.

WHEREAS in accordance with the relevant rules, the management of the school is to be handed over to the rightful claimant.

WHEREAS Shri S.N. Chaturvedi has claimed to be the rightful claimant for handing over the management of the school vide letter No. Nil dated 27.2.2002 (copy enclosed).

WHEREAS Shri H.N. Chaturvedi has also claimed to be the rightful claimant for handing over the management of the school vide letter No. Nil dated 21.3.2001 (copy enclosed).

NOW THEREFORE both Shri S.N. Chaturvedi and Shri H.N. Chaturvedi are required to submit detailed written statement Along with documentary evidence supporting their claim to be the rightful claimant.

The statement of claim with supporting documents must reach the undersigned within 10 days of issue of this letter failing which it will be presumed that you have nothing to say and action according to the Rules shall be taken.

Sd/-

(S.S. Rathor) Regional Director (South) His contention is that there was no option available to the Authorities but to return the School to Shri S.N. Chaturvedi Group from whom the possession of the School was taken-over under Section 20 of the DSE Act. In particular he has emphasised that on a careful reading of paragraph 27 of the Judgment of the Division Bench it is evident that Shri H.N. Chaturvedi was neither in control or in possession of the School at that time. Hence there was no justification whatsoever for the Administration to countenance the claims of Shri H.N. Chaturvedi. It must immediately be noted that the DSE Act does not contemplate the possible circumstances that may evolve after the expiry of the five year take-over period envisaged under Section 20. It does not prescribe the manner in which the take-over of the School should end, and to whom its possession and control should be handed over. In the present case there is no denial of the assertion by Ms. Avnish Ahlawat, learned counsel appearing of behalf of Directorate of Education, that several opportunities had been granted by the Directorate to both the Chaturvedi Brothers to establish which of them retains the right for the return of the School. Even at the time of the issuance of the Show Cause Notice it was evident that the Constitution of the Managing Committee of the School was unascertainable. The Directorate of Education was not presented with a situation where the internal disputes of the erstwhile Managing Committee/Trust had been sorted out so that the disputes which had led to the take-over under Section 20 had evaporated. The impugned Memo dated 15.3.2002 cannot be faulted on the ground that it had asked the two brothers/trustee to disclose facts indicative of who is the `rightful claimant’, or the `original Managing Committee’.

6. Mr. Madan Bhatia has drawn attention to the decision in Civil Writ Petition No. 2509 of 1981 entitled L.C. Gupta v. Union of India decided by this Court on November 2, 1983 wherein it was held that ‘whatever be the justification for the take over of the Management or for its continuation, the Administrator and his agent, the Authorised officer cannot retain the control of the management of the school after the expiry of the five years period. The Management must revert to the original managing committee from whom the management was taken over by the Director’. The learned Judge thereafter took note of the fact that disputes had arisen between two groups as to who is the proper Managing Committee and opined that such disputes must we settled in a civil suit. The gravened of the Judgment was that as there was no dispute at the time of the take-over, the Authorities ought to have returned it to the Petitioner. Shri R.S. Kumar, learned counsel appearing on behalf of H.N. Chatuvedi group, has relied on the Order passed in Arya Samaj Cooperative Craft Society v. Lt. Governor of the Union Territory of Delhi, 1995 Supp. (4) SCC 722. The Order observes that the writ petition had been rendered in fructuous because of the expiry of the maximum period of take-over i.e. five years, as provided by the statute. While ordering so, it had also been observed en passant that the Authorities had become obliged to return the Management along with school property, equipment, funs etc. which were taken-over under the impugned Order. Shri Kumar also referred to the case of Municipal Corporation of Delhi v. Children Book Trust, 47 (1992) DLT 424 (SC) in which, in paragraph 69, it has been observed that Delhi School Education act does not create the school entity a specific juristic entity different from the society and that by virtue of Rule 59(2)(q) of the Rules the Managing Committee shall be subject to the control and supervision of the Society by which the School is run, the only conclusion that can be arrived at is that the school is a part and parcel of the Society. In the facts of the present case, neither of these precedents is of advantage to H.N. Chaturvedi.

7. It has already been noted that the DSE Act does not adumbrate the events and/or steps which are to be taken by the Administration after the expiry of five years period of take-over. The Division Bench of this Court comprising Justice Y.K. Sabharwal, as His Lordship then was and Justice D.K. Jain, as His Lordship then was, had disposed of RA 808/95in CW 1131/92 on 1.11.1995, noting therein the existence of serious dispute as to who was the real management of Gandhi Harijan Sevak Samaj. It was this Body which was running the educational institution at the time of the take-over under Section 20 of the DSE Act. The Special Leave Petition bearing No. 546-547/96 was dismissed by the following brief Order on 8.11.1996:

“We have heard the learned counsel for the parties. In view of the fact that there are two rival sets of persons who were claiming to be representing the Society which was running the school, we are of the view that the High Court was right in directing that till the rival claimants establish their claims before the competent court, the existing state of affairs, namely, the management of the school being under the control of the Director of Education shall continue. The Director of Education should, however, ensure that the Management is directly under his control and no person belonging to either of the groups has any hand in the management for the funds of the Institution. The special leave petitions are dismissed.”

8. Section 20 of the DSE Act deals with the situations in which the Administrator can take-over the management of a particular school. No doubt, the contention of Mr. Bhatia is refutable that in these writ petitions the merits of the decision of take-over in the context of Section 20 of the DSE Act is not in question. The Section, however, does not prescribe the action which has to be taken after five the years period has elapsed. It would be implicit that if the affairs and working of the Society/Trust/Managing Committee which had established the School had since been mended, the Administrator must mandatory return the running of the School to that Body. Mr. Bhatia has forcefully argued that it is implicit that the Administrator must return the Management to the person or the body of persons from whom the possession was taken. I am unable to accept this submission for the reason that the control may have been taken from a person who was not legally responsible for the mismanagement or who had no legal standing in the Society or Trust or Managing Committee at the time of the initial take-over. It would be illogical to expect the Administrator to return to the status quo ante when the then situation was responsible or the raison d’etre for the take-over. Emphasing the allegations against Shri S.N. Chaturvedi to the effect that at the time of take-over he was guilty of misappropriation, mismanagement etc. thereby indubitably disclosing that it was he who was in charge of the Management would have little significance. It has also been contented that since possession has been taken-over from Shri S.N. Chaturvedi it must be returned to him and not to the Trust. The undeniable fact remains that it was the Trust which was recognised by the Administrator and/or the Directorate of Education and not the individual Shri S.N. Chaturvedi. The prayer for the return of the School to Shri S.N. Chaturvedi is, therefore, untenable and is rejected.

9. Furthermore, it would lead to an idle futility if the Administration is left with no alternative or option other than returning the School after the expiry of the five year period to the Body from who possession had been taken, even in circumstances where it is palpably evident to all that the School would again sink back into the morass and abyss from which it was extricated and rescued. The interpretation of Section 20 which commands itself is that upon the expiry of the maximum five year term the Administration must return the School to the erstwhile Body unless it cannot reasonably be determined and/or if it is clear that the reason for the take-over has not disappeared. The take-over `status’ would then have to progress into same other arrangement such as a permanent change viz. from a private school to a Government School. This decision would always be subject to judicial review. The object of Section 20 cannot be a transient change; it must be a transitional one from a regime of mismanagement or to maladministration to a beneficent order ensuring that proper education is imparted to the students for whom the State grants at least 95% if not total aid. In instances where School is not aided or is being runy a minority as envisaged in Article 30 of the Constitution, the Administration may be possessed only of the power to withdraw recognition.

10. Shri S.N. Chaturvedi has filed CWP 6455/2002 purporting to act on behalf of the Children Education Trust in which the prayer is for the issuance of writ of mandamus and prohibition or any other similar writ or direction of like nature quashing the order of determination of the Lease Deed dated 17.9.1979 executed in favor of the Petitioner Trust. It was in fact in this context that Mr. Bhatia has relied on the observations in the Indian Express case (supra). The allotment of almost invaluable land in the middle of the Metropolis, viz. Sector XIII, R.K. Puram, New Delhi was for nominal consideration only, since it was a covenant that the land shall be used only for a Primary School and no residential accommodation except for a caretaker shall be allowed to be constructed on the land. Clause VII-C which is of far reaching legal significance in that it states that if the Trust is de-recognised it shall be required to pay the difference between the market value of the demised land at the time of de-recognition of the School and the premium already paid failing which the demised land along with building, superstructure, fixtures, fittings etc. will revert to the Government. This conveyance, therefore, cannot be equated with other transfers or acquisitions of immovable property for the simple reason that its purpose was carefully spelt out in a particular direction. If the substratum of the Agreement is dislodged the entire edified constructed on that foundation would inevitably fall to the ground. Despite vociferous submissions made on behalf of the Administration and the Parents Teachers Association it has not been denied that the School strength had been reduced to 3 students at the time of take-over. The observations made by the Division Bench to the effect that the intent of Shri S.N. Chaturvedi and/or the other members of the Trust was to close down the School and thereafter develop the invaluable land, are not controvertible. The Administrator’s decision, therefore, to cancel the lease and to allot it to the Administration for the specific purpose of continuing the School, the Students strength of which has now augmented from 30 to approximately 90, does not suffer from Wednesbury unreasonableness. It is also relevant to record that there has been no denial on behalf of the Trust or either of the Chaturvedi Brothers that the Directorate of Education had communicated with them for sorting out their differences with a view to bring the functioning of the Trust to normalcy, and that no remedial steps had been taken on behalf of the Trust. It is also important that the Trust has lost title of the leased land and building thereon, and if it is nonetheless restored to it, a situation which could not have been achieved directly, would obtain indirectly. The prayers in CWP 6455/2002 are, therefore, rejected.

11. CWP 4276/2002 has been filed by Shri S.N. Chaturvedi Group praying that the Management be restored to them and that the communication dated 8.5.2002 by which Respondent No. 6, Directorate of Education had expressed their inability to do so, be quashed. These prayers are essentially the same as those made to this Court by Shri S.N. Chaturvedi Group. They are likewise dismissed.

12. CWP 1883/2002 has been filed by the Parents Teachers Association in which it had been prayed that the Directorate of Education be restrained from handing over possession and Management of the School to either of the Chaturvedi Brothers. It has further been prayed that the School which had been taken-over, should now be turn into the Government School. This writ petition need not be entertained further since the Land and Development Office has resumed the property and has transferred it to the Directorate of Education which is now directly running the School. No further orders are called for in this writ petition. This writ petition, therefore, stands disposed of.

13. CWP 2086/2002 has been filed by Shri S.N Chaturvedi purporting to act on behalf of the managing Committee (erstwhile) of Central Academy Senior Secondary School for quashing the Order dated 15.3.2002 and restoring the Management to the erstwhile Managing Committee. In view of the cancellation of the Lease and its allotment to the Administration, which has already found to be legal and legitimate these prayers are rejected.

14. CWP 2598/2005 has been filed by the Parents Teacher Association praying that the Directorate of Education should enquire into the genuineness of the Degrees or educational qualifications of Shri S.N. Chaturvedi and his son Ashok Chaturvedi. This prayer is predicated on a letter received from the Controller of Examinations, Deen Dayal Upadhyay Gorakhpur University, Gorakhpur, U.P. to the effect that name of Shri Surya Narayan Chaturvedi is not found against the Roll Number mentioned in the Bachelor of Education Certificate submitted and relied upon by Shri S.N. Chaturvedi. I do not find it necessary to exercise the extraordinary jurisdiction of the Court on such a matter. Persons aggrieved by the alleged forgery can take alternate Leal recourse. It has also been prayed in this writ petition that the recognition accorded to the Trust be withdrawn. That prayer has already been answered in terms of the action of the cancelling of the Lease and the running of the School directly by the Directorate of Education. No further orders are called for in this writ petition. The writ petition, therefore, stands disposed of.

15. All the writ petitions stand disposed of.

16. Parties to bear their respective costs.