Delhi District Court
Kumari Florince (Minor Aged 09 Years) vs Mount Carmel School on 26 March, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
RCA No. 04/10
In the matter of :
Kumari Florince (Minor aged 09 years)
D/o Sh. Vinod Bharti
R/o Flat No308, PKT2
Sector 19, Dwarka
New Delhi110075
Through her Father
and natural guardian
...Appellant
Versus
Mount Carmel School
Sector22, Dwarka
New Delhi
Through its Principal
The Director of Education
Government of NCT of Delhi
Old Sectt., Delhi - 54
...Respondents
Filed on : 17.08.2010
Reserved on : 24.03.2011
Decided on : 26.03.2011
J U D G M E N T: RCA No. 04/10 Page 1/18
1. Appellant has assailed judgment and decree dated 05.04.2010 passed by Ld. Sr. Civil Judge / Rent Controller, Dwarka Courts, New Delhi in Civil Suit No. 183/09 titled as 'Kumari Florince (Minor) Vs. Mount Carmel School and another' whereby suit for mandatory and permanent injunction filed by the plaintiff was dismissed.
2. For the sake of convenience, parties will be referred in this order as per their status before the trial court.
3. Plaintiff, aged 9 years, was a student of class IV in defendant no. 1 school.
4. Defendant no. 1 is a minority education institution within the meaning of Section 2 (g) of the National Commission for Minority Educational Institutions Act, 2004 and is covered under Article 30 of the Constitution of India.
5. Defendant no. 2 is Director of Education and is an important functionary in the scheme of Delhi School Education Act and Rules, 1973. Unfortunately, defendant no. 2 remained unrepresented before the trial court as well as before this Court. Therefore, the trial court and this court were not having the benefit of hearing the arguments of defendant no. 2.
6. Plaintiff had alleged in the plaint that she was studying in defendant no. 1 school since Prep of academic session 20052006. She was a very bright student throughout and for this reason she was awarded scholarship of Rs. 500/ every year along with a certificate of compliment.
7. It was also stated that defendant no. 1 school is governed by Rules and Regulations of Delhi School Education Act and Rules, 1973.
8. It was also stated that the plaintiff belongs to Scheduled Caste RCA No. 04/10 Page 2/18 Community. She filed her SC certificate along with the plaint and stated that DSER, 1973 provides exemption from payment of tuition fee as per Rule 1585 (a) and 162 (2) to the students of aforesaid category. As such plaintiff called upon defendant no. 1 for exemption from payment of fees and other charges right from her admission.
9. It is stated that defendant no. 1 school started threatening to remove the plaintiff from the school if she persisted with fee concession and defendant no. 1 school finally removed plaintiff's name from the school rolls with effect from 01.08.2009.
10. Since plaintiff was in the middle of academic session, present suit for permanent and mandatory injunction was filed on 03.08.2009.
11. Following prayers were made in the suit : "a. pass a decree of mandatory injunction, directing the defendants to grant exemption to the plaintiff, from the payment of fees and other charges which is admissible to the children belonging to SC & ST category in accordance with policy of the Government and as per the provisions of DSER Act, 1973;
b. restrain the defendants, their representatives, agents, Principal, teachers, staff or assigns from removing the name of the plaintiff from the school rolls or from extending unjust and unlawful threats in this regard;"
12. Defendant no. 1 filed its written statement and stated that it is a Christian Minority Institution which is run in terms of Article 30 of Constitution of India.
13. It was further stated that annual income of the parents of the plaintiff must be more than Rs. 6 lacs per annum and she is not entitled to any fee concession.
14. Defendant no. 1 claimed that the suit has become infructous because order dated 20.07.2009 whereby plaintiff was removed from the school has already RCA No. 04/10 Page 3/18 become operative with effect from 01.08.2009.
15. The main defence of defendant no. 1 was that present suit is filed to hide unlawful acts of father of plaintiff violating human rights of economically weaker section children. It was stated that one master Ravi Shanker is a student of Shiksha Kendra and was given admission in the defendant no. 1 school finding the said child deserving. It is stated that as per ethos and policy of the school, disadvantaged children of society are promoted by providing them opportunity of education free of cost wherein children from slums and disadvantaged class are given free education and are given uniforms, study material, transportation and mid day meals.
16. On account of sitting arrangement of the class which is always on the basis of rotation, said economically weaker section child was sitting with the plaintiff which was disliked by her father Sh. Vinod Bharti who showed his annoyance by sending a note to the school with a threat that in case of noncompliance he would approach to DDE. The aforesaid threat was further extended vide note dated 21.07.2009 by further putting allegation on the teacher.
17. It was stated that this act of father of plaintiff lowered the esteem of child belonging to economically weaker section and violated his human rights and showed disrespect to directions of Hon'ble High Court of Delhi regarding free seats for students belonging to economically weaker section.
18. It was also stated that the anti economically weaker section student stance of parents effected Kumari Flowrince who objected to sit with economically weaker section child. Therefore, the school in consonance with its ethos, rules and regulations thought it wise to remove her name from the rolls of school with effect from 01.08.2009.
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19. Plaintiff filed a replication. The contents of written statement were denied. Allegation that father of plaintiff refused to allow plaintiff to sit with a student belonging to economically weaker section was stated as misinterpretation. It was stated that even on those allegations defendant no. 1 is not empowered to remove the plaintiff from the school.
20. Vide interim orders dated 31.08.2009, following directions were passed by the trial court:
(i) That the father of the plaintiff shall within a weeks time deposit the entire arrears of tuition fees till today and will continue to pay the same till further orders.
(ii) The defendant no. 1 is also hereby directed to allow the plaintiff to continue her studies in Defendant no. 1 School during the academic year 200910. Needless to state that in case the suit is decided prior to the end of the academic year 200910, this order shall be subject to final outcome of the suit.
(iii) Further during the pendency of the suit, in order to meet the apprehension of the Defendant no. 1 School that the father of the plaintiff will continue to harass the management of the Defendant no. 1 School, it is made clear that in case the father of the plaintiff is of the opinion that the Defendant no. 1 School is guilty of any malpractice or of any illegal action against his child he may approach this court before approaching the police authorities.
(iv) Further, it is also made clear that it is the mother of the plaintiff who will interact with management of the school with respect to the plaintiff's welfare and she alone will attend Parents Teacher Meeting etc. on behalf of plaintiff child.
(v) It is also made clear that the parents of the plaintiff have no rights to interfere in the policy of the Defendant no. 1 School in catering to the needs of the children belonging to Economic Weaker Section of the society and in this regard they shall not object to the sitting arrangements of the plaintiff or other students of her class, made by the defendant no.1 School.
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(vi) The parents of the plaintiff, shall not, in any way, instigate or advise the plaintiff child to behave in a manner contrary to the discipline of defendant no.1, School.
21. From the pleadings of parties, following issues were framed by trial court :
1. Whether the plaintiff is entitled to have the exemption from payment of fees and other charges from the defendant no. 1 which is a minority unaided school or otherwise as claimed by the plaintiff ? OPP.
2. Whether the suit is not maintainable in view of Section 25 of the Delhi School Education Act 1973 ? OPD.
3. Whether the plaintiff is entitled for the relief as prayed for in prayer
(ii) or whether the suit was infructous at the time of filing of the same ? OPP & OPD.
4. Whether the removal of plaintiff from the school on account of discriminatory conduct of plaintiff and her father is justified or not ? OPD.
5. Relief.
22. Father and mother of plaintiff entered the witness box as PW1 and PW2. On behalf of defendant no. 1, Dr. Rajeev Tyagi, Sr. Vice Principal appeared as PW1, Mrs. Roma Ahluwalia, class teacher of plaintiff appeared as PW2 and Mrs. Girsalda Dickson, Head Mistress of defendant no. 1 school appeared as defendant no.
23. Vide impugned judgment, suit was dismissed.
24. In this appeal, learned counsel for appellant did not press for relief
(i).Relief (ii) rejected by trial court is assailed on the basis of ground G, I and L which are : G. Because the Ld. Trial Court has failed to appreciate that as per the provisions of D.S.E.R., it has been made mandatory that a student from 6 to 14 years of age cannot be removed from the rolls of the school for any RCA No. 04/10 Page 6/18 reason whatsoever.
I. Because of Ld. Trial Court has failed to appreciate that The Right of Children to Free and Compulsory Education Act, 2009 has come into force w.e.f. 01.04.2010 and no student from 6 to 14 years of age be expelled from the school for any reason whatsoever.
L. Because the Ld. Trial Court has failed to appreciate that school authorities had exercised their unlawful power in a most arbitrary and aristocratic manner to punish a child for the alleged misconduct of her father.
25. As relief no. 1 was not pressed by plaintiff in this appeal and defendant no. 1 has not filed any cross appeal with regard to issue no. 2, this court is to consider the judgment and decree of ld. trial court visavis issue no. 3 and 4 only.
26. In the impugned judgment, ld trial court has elaborately dealt with the evidence brought on record by the parties and came to conclusion that the defendant no. 1 school was justified in removal of plaintiff from the school on account of discriminatory conduct of plaintiff and her father.
27. Ld trial court has noticed in its judgment that even during the year of 2006, the father of plaintiff was not satisfied with the manner in which the defendant no. 1 school was running its administration. Plaintiff's father was informed by the school that he should make arrangements for his child's admission in another school with effect from 31.03.2007. The response of the father of plaintiff is noted in the order of trial court as under: "School is neither the personal Jagir of any of the constituent mentioned above nor it can exist any long without the presence of children and the parents".
28. However, plaintiff was allowed to continue the school on the assurance of officials of Directorate of Education.
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29. It is noted in the impugned order that father of plaintiff pressed for fee concession in the year of 2009 as she belonged to SC ST category. As the request was not acceded, a complaint was made to department of education and plaintiff did not pay any fee till the court passed interim orders noted above.
30. The note written by the father of plaintiff in the diary of plaintiff objecting sitting of his daughter with an economically weaker section student is quoted by the trial court as under: "I send my ward in your school for study not to teach the economic weaker students of your school. Therefore, you are requested to you please do not force my ward to sit with above said EW student. Noncompliance of my note I' will approach to DDE (Edn.), Najafgarh for further.".
31. Further harassment caused by father of plaintiff to the management of defendant no. 1 school is also recorded in detail in para 25 and 26 where it is noted that father of plaintiff made various calls to the school and threatened that in case his daughter is made to sit with child belonging to EWS category he would complain against the school to the Directorate of Education.
32. Once even police was also called to the school on the false complaint of father of plaintiff that his child has been illegally confined in the school and her feet and hands have been tied.
33. Ld trial court noted that defendant no. 1 school is an unaided minority school and therefore its constitutional rights cannot be over looked. The trial court was of the opinion that if defendant no. 1 school did not want father of plaintiff to interfere in its policy of administration and discipline, the school cannot be held guilty of maladministration. The trial court found the conduct of school reasonable RCA No. 04/10 Page 8/18 and fair as inspite of non payment of school fees by plaintiff from April 2009 till August 2009, defendant no. 1 did not contemplate the removing of the child from its rolls on the ground of nonpayment of fees.
34. The trial court held that the father of plaintiff has been consistently interfering in the policies which the defendant no. 1 wishes to practice as a minority institution and did not think twice before approaching the police on false complaint and vitiated the atmosphere of the school with his behaviour and defendant no. 1 is within its rights of administration in not allowing the plaintiff to continue in its school.
35. Sh. Amir Yadav, ld counsel for appellant has confined his arguments mainly on two points. First is that the action of defendant no. 1 in removing the plaintiff from its school is in violation of rules 35 and 37 of the DSE Rules, 1973.
36. Rule 35 of The Delhi School Education Rules, 1973 reads as under : (1) The name of a student may be struck off the rolls by the head of the school on account of :
(a) nonpayment of fees and other dues for 20 days after the last day for payment:
Provided that nothing in this rule shall apply in case students of class VIII and below, studying in Government or aided schools, or in schools run or aided by the appropriate authority, except where such students have attained the age of fourteen years;
(b) Continued absence without leave for six consecutive days by a student who has attained the age of fourteen years.
(2) In the case of absence of any student who has not attained the age of fourteen years, from a school without leave for six consecutive days, the head of school shall intimate such absence to the parents or guardian of such student. (3) In respect of payment of fees, however the head of school may grant not more than 10 days of grace in deserving cases on application by the parent or guardian.RCA No. 04/10 Page 9/18
(4) Notwithstanding anything contained in subrule (1), no student's name shall be struck off the rolls except after giving the parent or guardian of such student a reasonable opportunity of showing cause against the proposed action.
37. This section is not applicable to facts of this case because removal of plaintiff is not for non payment of fee or for absence from school.
38. Rule 37 of the DSE Rules, 1973 reads as under : (1) The following shall be the disciplinary measures which may be adopted by a school in dealing with :
(a) all students
(i) detention during the break, for neglect of class work, but no detention shall be made after the school hours,
(ii) corporal punishment,
(b) students who have attained the age of fourteen years
(i) fine,
(ii) expulsion,
(iii) rustication, (2) For the avoidance of doubts, it is hereby declared the the disciplinary measures specified in clause (b) of subrule (1) shall not be imposed on any student who has not attained the age of fourteen years. (3) Fine may be imposed on a student who has attained the age of fourteen years in the following cases namely:
(i) late attendance;
(ii) absence from class without proper application from the parent or guardian;
(iii) truancy;
(iv) wilful damage to school property;
(v) delay in payment of school fees and dues;
(4) (a) Corporal punishment may be given by the head of the school in case of persisting impertinence or rude behavior towards the teachers, physical violence, intemperance and serious form of misbehavior with other students.
(b) Corporal punishment shall not be inflicted on the students who are in ill health.
RCA No. 04/10 Page 10/18
(c) Where corporal punishment is imposed, it shall not be severe or excessive and shall be so administered as not to cause bodily injury.
(d) Where cane is used for inflicting any corporal punishment, such punishment shall take the form of strokes not exceeding ten, on the palm of the hand.
(e) Every punishment inflicted on a student shall be recorded in the Conduct Register of such student.
(5) Expulsion shall debar a student from being readmitted to the school from where he is expelled but shall not preclude his admission with the previous sanction of the Director to any other school. (6) Where a student is rusticated, he shall not be admitted to any school till the expiry of the period of rustication.
(7) No student shall be expelled or rusticated from a school except after giving the parent or guardian of the students a reasonable opportunity of showing cause against the proposed action.
Notes:
(i) Expulsion or rustication shall be resorted to only in cases of grave offences where the retention of the student in the school is likely to endanger its moral tone of discipline.
(ii) Except in the case of any expulsion or rustication from an unaided minority school, the punishments of expulsion and rustication shall not be imposed without the prior approval of the Director.
39. Under Rule 37, disciplinary measures specified in clause (b) of sub rule 1 cannot be imposed on any student who has not attained the age of 14 years. This is the provision of DSE Rules, 1973 which is relied upon by plaintiff to assail orders of removal passed by defendant no. 1 school because plaintiff is also below 14 years of age.
40. However, Sh. Ashwani Kumar Sakhuja, learned counsel for defendant no. 1 has argued that Rule 37 does not apply to the case in hand because defendant no. 1 is an unaided minority institution. Reliance is placed on the case of 'Mount RCA No. 04/10 Page 11/18 Carmel School Society and another versus Govt. of NCT of Delhi & Anr' WP (C) 7568/99 dated 13.08.2010.
41. In the above cited case, right of a minority institution to extend age of retirement of its Principal to 62 years was upheld by relying upon Article 30 of the Constitution of India. The said judgment noted that Chapter VIII of the Delhi School Education Rules, 1973 does not apply to an unaided minority school and decision in the case of 'Frank Anthony' has not changed the position. Therefore the cited judgment is not applicable to facts of case in hand.
42. The submission of the counsel for defendant no. 1 that Rule 37 does not apply to unaided minority school, is also not acceptable because regulations made by the state concerning generally the welfare of students and teachers do not in any manner interfere with the right of minority institution under Article 30 of the Constitution. (Secretary, Malan Khara Syrian Catholic College Vs. T. Jose:
(2007) I SCC 3016).
43. Furthermore, the note appended below Rule 37 also makes it clear that the Rule 37 applies to an unaided minority school in as much as the only concession given to an unaided minority school is that it can expel or rusticate a student without prior approval of the director.
44. Next argument of learned counsel for defendant no. 1 is that Rule 37 even if it applies to unaided minority school, it will still not be attracted to the facts of this case because what is prohibited under Rule 37 is expulsion or rustication from the school. The restriction provided under sub rule 2 of Rule 37 is only that disciplinary measures specified in clause (b) of sub rule 1 shall not be imposed on any student who has not attained the age of 14 years. It was argued that neither RCA No. 04/10 Page 12/18 defendant no. 1 has imposed fine, nor expelled nor rusticated the plaintiff from its school.
45. It was argued that distinction between removal simpliciter which is not stigmatic and expulsion or rustication is apparent from a bare reading of sub rule 5 and 6 of Rule 37 of DSE Rules, 1973.
46. Ld counsel for defendant no. 1 has stated that in the case of expulsion, the expelled child cannot be admitted in any school except with previous sanction of the director of education.
47. It was also argued that in the case of rustication the rusticated child cannot be admitted in any school till the expiry of period of rustication.
48. Ld counsel for defendant no. 1 argued that in this case plaintiff got admission in another equally well reputed unaided minority institution namely St. Thomas Public School and suffered no prejudice which is attached to an expelled or rusticated child.
49. In the case of "Master Rahul Seth ( minor) versus Mount Carmel School and another" WP (C) No. 11301/2009 dated 31.08.2009 the decision of defendant no. 1 school to suspend one of its student indefinitely was upheld. In the said judgment the plea of counsel for petitioner that expulsion of the petitioner is contrary to Delhi School Education Rules, was not accepted as petitioner was not expelled but was suspended indefinitely. In this case also plaintiff was not expelled but was removed from the school. Said matter was assailed before Hon'ble Division Bench where the parties compromised the issue but it was noted by Hon'ble High Court that occasionally, the school may act more sternly than necessary when obdurate parent may not toe the disciplinary line of the school. This observation of RCA No. 04/10 Page 13/18 Hon'ble High Court was relied upon by counsel for defendant no. 1 to contend that the right of unaided minority school to take action for maintaining discipline in the school was also acknowledged by Hon'ble High Court.
50. On the other hand, counsel for plaintiff argued that removal on one hand and expulsion on other hand boils down to same effect and a student below 14 years of age cannot be even removed from school.
51. A perusal of Rule 37 shows that only disciplinary measure of imposing fine, expulsion or rustication of child under the age of 14 years is prohibited. Consequences of expulsion and rustication are provided for in Rule 37 itself. Defendant no. 1 school has neither imposed fine nor rusticated nor expelled the plaintiff from the school. The plaintiff did not suffer any prejudice by order of removal from the school as she did not remain rusticated for any period of time and got admission in an equally well reputed unaided minority institution without prior approval of director of education. Therefore, defendant no. 1 school cannot be called guilty of violating Rule 37 of DSC Rules 1973.
52. Sh. Vinod Bharti, the father of minor plaintiff is working as a Welfare Officer in Social Welfare Department of Delhi Government, in anti begging drives. He has strong resentment if his daughter is made to sit next to an economically weaker section student.
53. As per preamble of the Constitution, people of India have resolved to secure to all its citizens equality of status and of opportunity and to promote fraternity assuring dignity of each citizen.
54. The Constitution (86th Amendment) Act, 2002 incorporated Article 21 A in the Constitution which is as under : RCA No. 04/10 Page 14/18 Right to education - That State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by law, determine.
55. Article 39 (f) of the Constitution is as under : Certain principles of policy to be followed by the State - The state shall, in particular, direct its policy towards securing
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
56. As per Article 51 A (a) of the Constitution of India, it is fundamental duty of all citizens including father of plaintiff to abide by the Constitution and respect its ideals and institutions. It is also the duty of every citizen to promote harmony and spirit of common brotherhood amongst all the people of India.
57. With the aim of providing free and compulsory education to all children upto age of 14 years, legislatures have enacted The Right of Children to free and Compulsory Education Act, 2009.
58. Insistence of Shri. Vinod Bharti, father of plaintiff that his daughter will not sit on same desk where a student of economically weaker section of society who is otherwise academically bright sits shows scant respect by him for the Constitution of India.
59. Adamant behavior of Shri. Vinod Bharti is to violate right of equality of opportunity of a student of economically weaker section and by no means promotes fraternity and brotherhood amongst citizens of this country. Conduct of Sh. Bharti is RCA No. 04/10 Page 15/18 in breach of his fundamental duties noted in Article 51 A (a) and (e) which calls upon every citizen of India to abide by the Constitution and respect its ideals and institutions.
60. Such a conduct is most reprehensible conduct unbecoming of a responsible citizen of this country.
61. Being a Gazetted Officer and as such a Government servant himself he has a duty at all times, as per Rule 3 of Central Civil Services (Conduct) Rules, 1964, to do nothing which is unbecoming of a Government servant.
62. Instead of cooperating in noble cause of education of economically weaker section students, father of plaintiff is bent upon causing inferiority complex in the minds of children of economically weaker sections.
63. If every father resented sitting of his child with an economically weaker section student, such children will be deprived of quality education even if they are academically promising.
64. Next, Learned Counsel for appellant Sh. Amir Yadav has relied upon Section 16 of the Right of Children to Free and Compulsory Education Act, 2009 to contend that removal of plaintiff from school is illegal. Said section reads as under :
16. Prohibition of holding back and expulsion No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.
65. However, this argument is rejected because order of removal of plaintiff from school was passed on 01.08.2009 but the said Act came into force on 01.04.2010,
(ii) plaintiff had completed academic year till 31.03.2010 only by way of interim mandatory orders of Ld. Trial Court, (iii) this question was never raised before trial RCA No. 04/10 Page 16/18 court, (iv) no efforts were made to amend the suit even at appellate stage, (v) under Section 2 (2) of the act, "School"means any recognized school imparting elementary education and includes (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. In this definition an unaided minority school is not included. Moreover, plaintiff was never expelled but only removed from the school.
66. Therefore, defendant no. 1 School was fully justified in removing plaintiff from the school; there is no violation of Rule 37 of DSE Rules, 1973 and plaintiff is not entitled to any benefit of Section 16 of The Right of children to free and compulsory Education Act, 2009.
67. Section 41 (i) of the Specific Relief Act of 1963 lays down that an injunction cannot be granted when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. An injunction is a discretionary form of specific relief: the court may refuse to grant an injunction if the plaintiff by his conduct disentitled himself to relief. The party seeking injunctive relief must not be himself at fault. The conduct of the party seeking equitable relief must not be blamable. When the conduct of the person complaining has led to the state of things that occasioned his seeking the equitable remedy, an injunction would be refused. Therefore, considering the conduct of plaintiff as well as her father plaintiff is not entitled to the injunction as prayed. RCA No. 04/10 Page 17/18
68. Appeal therefore fails. Trial court record along with a copy of this order be sent back. File be consigned to record room.
Announced in the open Court
on the 26th day of March,2011 (ARUN BHARDWAJ)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
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