Delhi High Court
Sant Nirankari Boys Sr. Sec. School & ... vs Govt. Of Nct Of Delhi & Anr. on 3 November, 2015
Author: Sunil Gaur
Bench: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: November 03, 2015
Pronounced on: November 06, 2015
+ W.P.(C) 6803/2002
SANT NIRANKARI BOYS SR.SEC.SCHOOL & ANR.
.....Petitioners
Through: Mr.Arun Bhardwaj, Senior
Advocate, with Mr. R.K.Kapoor
and Mr. Joginde Sukhija,
Advocates
versus
GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Satyakam, ASC for GNCTD,
for respondents No. 1 and 2
Ms. Madhumita Bhattacharjee,
Advocate for respondents No. 3 to
10
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
In this petition, petitioner-School seeks Grant-in-Aid for Primary Section from the date when the School was granted recognition i.e. from December, 1993 or from any other date which may be deemed appropriate. Petitioner-School vide application of 9th April, 1994 (Annexure P-3) had sought Grant-in-Aid for its Primary Section. On 17th August, 1994, second respondent-Director of Education had informed petitioners that the Grant-in-Aid cannot be sanctioned due to lack of funds. Again on 29th May, 1995 (Annexure P-7), petitioner-school had sought Grant-in-Aid for its Primary Section. On 24th June, 1997 vide W.P.(C) 6803/2002 Page 1 of 11 Communication (Annexure P-13) second respondent had sought a fresh undertaking and some documents and the same were supplied by petitioner vide letter of 17th July, 1997 (Annexure P-14). Again on 12th March, 1998 (Annexure P-15), petitioner had renewed the request for Grant-in-Aid for its Primary Section and second respondent vide Communication of 15th December, 1998 (Annexure P-16) had sought the information regarding the staff appointed by the Management. Alongwith letter of 22nd December, 1998 (Annexure P-17), petitioner had annexed the Staff Statement of Primary Wing, which revealed that the members of the staff of petitioner-School were all aged less than 30 years (after relaxation) at the time of their recruitment with the exception of one staff member, who was found to be of 36 years of age.
It is pertinent to note here that the revised age limit for women candidate to the post of Teacher as per the Government Notification of 1st November, 1980 was upto 40 years. That is to say, maximum General Age relaxation of 10 years was given to the women candidates for the post of Teachers. Quite evidently none of the women teachers, as reflected in the Staff Statement of the Primary Wing, had attained the age of 40 years. The only exception was one male Teacher-Som Dutt Sharma, who was aged 36 years at the time of his appointment whereas the maximum age limit for the appointment of male teachers was 30 years.
Vide Communication of 11th June, 1999 (Annexure P-18), second respondent had informed petitioner that existing staff of Primary Section may be required to face the Departmental Promotion Committee as applicable to aided schools. The response of petitioner was that no promotion is being made in the Primary Section of the School and so, the W.P.(C) 6803/2002 Page 2 of 11 requirement of facing Departmental Promotion Committee is to be dispensed with. Second respondent vide Communication of 7th February, 2000 (Annexure P-20) had informed petitioner that four Teachers working in the Primary Section have not studied Science and Mathematics upto Matriculation/Higher Secondary Level, which was mandatory as per the Recruitment Rules of Assistant Teachers.
It was pointed out that one male Teacher i.e. Som Dutt Sharma was over age by six years. Vide letter of 13th November, 2000 (Annexure-22), petitioner had sent the information regarding the educational qualifications of the Primary Staff. Vide letter of 5th August, 2002 (Annexure P-25), petitioner had informed second respondent that if any Teacher in the Primary Section of the School is found to be over aged, then his/her services will be dispensed with immediately and required number of teachers in the Primary Section will be appointed within ninety days of the release of Grant-in-Aid.
It was also highlighted that petitioner is imparting free education upto 5th standard and so, petitioner is eligible for the Grant-in-Aid. Inspection report of 20th August, 2002 (Annexure P-26) of the Primary Section of petitioner-School contains general remarks "Take zero periods. Improve results of C.B.S.E.".
In the counter affidavit filed by contesting respondent No.2, the stand taken was that the society running the Primary Section of the School is financially sound and has sufficient funds and so, Grant-in-Aid is not required to be given to petitioner. The stand taken by second respondent in the supplementary affidavit of 27th October, 2004 is that in a special inspection of the Primary Section of petitioner-School, number W.P.(C) 6803/2002 Page 3 of 11 of discrepancies and deficiencies were found. The precise stand taken by respondent is that not a single teacher fulfilled the requisite qualification for the post of Primary Teacher and all the Primary Teachers were above the age of 30 years on the day of appointment and were drawing consolidated salary of `3,000/- to `5,000/- per month. Thus, the stand taken by respondent-State is that petitioner-School is not entitled to the Grant-in-Aid.
In the response to the supplementary affidavit filed by respondent No.2, petitioners had asserted that their Primary School Teachers had gained enough experience and so, it was desirable to grant relaxation and to waive the objections raised.
At the hearing, it was submitted by learned senior counsel for petitioners that in terms of the Rule 5 of the Delhi School Education Rules, 1973, petitioner-School is eligible for the Grant-in-Aid as free education is being imparted to the students in the Primary Section of the School.
Regarding the educational qualifications, attention of this Court was drawn to the Notification of 19th June, 1998 issued by Government of NCT of Delhi to point out that the requisite qualification for appointment to the post of Primary School Teacher in the year 1998 was Higher Secondary/Senior Secondary/Intermediate or graduate from a recognized University or Board. Two years' JBT/ETT Certificate/Diploma or B.Ed./B. El. Ed. (Bachelor of Elementary Education) from a recognized institution/university. It was categorically asserted that the teaching staff members of the Primary Section of petitioner-School have the afore- noted requisite qualifications.
W.P.(C) 6803/2002 Page 4 of 11Regarding the age bar, it was submitted by learned senior counsel for petitioners that only one male teacher is over age and once the Grant- in-Aid is given to petitioner-School for the Primary Section, then the services of the male teacher-Som Dutt Sharma would be dispensed with. It was submitted on behalf of petitioners that the Primary Section Teachers of petitioner-School have already obtained an order from a co- ordinate Bench of this Court requiring petitioners to pay the salary to them as payable to the employees of equivalent status in the government schools. Thus, it was submitted that the Grant-in-Aid is desperately needed to comply with the directions issued by a co-ordinate Bench of this Court on 24th March, 2015 in Smt. Roopa Sharma and Ors. v. The Directorate, Director of Education and Ors..
Attention of this Court was also drawn to the office notings of second respondent to point out that there is already a proposal for Grant- in-Aid to petitioner w.e.f. 1st April, 2001 as the Managing Committee of petitioner-School had undertaken to appoint the requisite staff as per recruitment norms for recognized Primary Section following the provision of Rule 96 of the Delhi School Education Rules, 1973. Thus, reliance was placed by learned counsel for petitioners upon decisions in Kihoto Hollohan v. Zachillhu & Others 1992 Supp (2) SCC 651, State of H.P. V. H.P. State Recognized & Aided Schools Managing Committees and Others (1995) 4 SCC 507, State of Maharashtra v. Manubha Pragaji Vashi and Others (1995) 5 SCC 730, Chandigarh Administration and Others v. Rajni Vali (Mrs.) and Others (2000) 2 SCC 42 and Ex-Capt. Harish Uppal v. Union of India & Another (2003) 2 SCC 45 in support of above submissions.
W.P.(C) 6803/2002 Page 5 of 11On behalf contesting respondents No.1 & 2, it was submitted that the qualifications, which would govern the Primary Teaching Staff of petitioner-School, would be as applicable in the year 1997 and not a single teacher fulfils the requisite qualifications for the post of Primary Teacher. It was urged that since petitioners are not paying the salary to its Primary School teachers as per their entitlement, therefore, Grant-in- Aid cannot be granted to petitioner-School.
At this stage, learned counsel for respondents No.1 & 2 places on record copy of order of 27th February, 2007 declining Grant-in-Aid to petitioner-School. It was pointed out that during the pendency of this writ petition, second respondent was called upon by this Court to consider the case of petitioner for the sanction of Grant-in-Aid for its Primary Section and vide order of 27th February, 2007, second respondent had declined the Grant-in-Aid to the Primary Section of petitioner-School while noting the following deficiencies: -
(a) "The Managing Committee had appointed the staff in the Primary Section in violation of Rule 100 and Rule 102 of the Delhi School Education Act & Rules both in terms of qualifications and age. And the Primary Wing of the school is being run with the same staff.
(b) The Managing Committee did not employee sufficient number, as per post fixation norms, of adequately qualified teachers as per enrolment of students, which is a blatant violation of Rule 66 of DSEA&R 1973 and the conditions under which recognition was granted to the Primary stage.
(c) The Managing Committee has not been paying salary and other benefits to the staff as per provisions of Section 10 of the Delhi School Education Act & Rules, thus patently violating the provisions of the Act as well as the conditions of W.P.(C) 6803/2002 Page 6 of 11 granting of recognition."
Learned counsel for respondents No.1 and 2 contends that petitioners had not appointed the teachers in the primary section by following the rules and regulations and many of them were appointed on compassionate grounds and later on, they were regularized and when petitioners had sought Grant-in-Aid in the year 1994, at that time, their teachers were not having requisite qualifications. Lastly, it was emphasized that no financial constraint has been pleaded to obtain the Grant-in-Aid and it would not be equitable to extend Grant-in-Aid to petitioner as because they are not paying their own teachers the salaries which are due to them although there is no financial constraint. Finally, it was submitted that the office notings have no binding effect and the order of 27th February, 2007 declining the Grant-in-Aid to petitioner-School is valid and so, this petition deserves to be dismissed.
Learned counsel for respondents No.3 to 10 submitted that she appears on behalf of Primary Section Teachers of petitioner-School and asserted that the educational qualification, as applicable in June, 1998, would hold the field as the qualifications of the Teaching Staff is to be seen on the day when the Grant-in-Aid is to be sanctioned.
Learned counsel for respondents No.3 to 10 converted the stand taken on behalf of respondents No.1 and 2 by submitting that at least w.e.f. June, 1998, the respondents were duly qualified and were in the regular service in petitioner-School and so, there is no justification for denying the Grant-in-Aid to petitioner-School to facilitate the payment of salaries due to respondents No.3 to 10.
W.P.(C) 6803/2002 Page 7 of 11It is submitted on behalf of respondents No.3 to 10 that the services of the Primary Section Teachers of petitioner-School were regularized in the year 1997 as per the Rules and Regulations. Thus, it is submitted that the question of educational qualifications of Teaching Staff of the Primary Section of petitioner-School cannot be now questioned and so, the Grant-in-Aid deserves to be granted to petitioner-School so that respondents No.3 to 10 are given the salary in terms of the decision rendered on 24th March, 2015 by a co-ordinate Bench of this Court in Smt. Roopa Sharma (supra). Thus, it is submitted that the instant writ petition deserves to be allowed.
Upon considering the submissions advanced by both the sides and on perusal of impugned order of 27th February, 2007, the material on record and the decisions cited, I find that when petitioners had sought Grant-in-Aid, then primary teaching staff of petitioner-Primary School was not qualified but with the amendment of educational qualifications, vide Government Notification of 19th June, 1998 on record, existing primary school teachers having two years' JBT/ETT Certificate/Diploma or B.Ed./B.El.Ed. from a recognized institute/university became eligible and it is not in dispute that in June, 1998, when the existing primary teaching staff of petitioner-School became eligible, at that time, they were in regular employment of petitioner-School.
No doubt, one of the primary school teachers i.e. Som Dutt Sharma is not eligible as he was overage at the time of his appointment. No doubt, Rule 66 of Delhi School Education Rules, 1973 mandates that no Grant- in-Aid can be given for unqualified staff unless exemption has been given by the Director of School Education. Since petitioners claim that W.P.(C) 6803/2002 Page 8 of 11 aforesaid teacher-Som Dutt Sharma was appointed on compassionate grounds, therefore, the Directorate of Education is required to consider the case of petitioners for exemption in respect of above said teacher.
It is the case of petitioners that they qualify for Grant-in-Aid as they fulfill the requisite condition for the Grant-in-Aid as provided under Rule 65 of Delhi School Education Rules, 1973. Petitioners claim that they are providing free education in the primary section of the School and so, they are entitled to the Grant-in-Aid and the financial status is not a consideration whether to grant aid or not.
On this aspect, pertinent observation of the Apex Court in State of H.P. (supra) are as under: -
"It is high time that the State must accept its responsibility to extend free education to the children up to the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget allocation under the head „Education‟. The Union of India must also consider to increase the percentage of allocation of funds for "Education" out of the Gross National Product."
Rule 5 of Delhi School Education Rules, 1973 stipulates that free education is to be provided for all children till the 8th Class or till the children have attained the age of 14 years, therefore, it is abundantly clear that in order to provide free education, respondent-State is obligated to give Grant-in-Aid and financial status of the institution of running the school would not be a criteria to determine whether Grant-in-Aid is to be granted or not. Pertinently, Form-III appended to The Delhi School W.P.(C) 6803/2002 Page 9 of 11 Education Rules, 1973 provides the format for making an application for yearly assessment of the Aid and in this Form, there is no column regarding the financial status of the institution seeking the Grant-in-Aid. During the course of hearing, it was not disputed that the secondary section of petitioner-School is already getting the Grant-in-Aid. Undisputedly, the primary section of petitioner-School is recognized by respondents and so, respondents are under obligation to provide Grant-in- Aid to primary section of petitioner-School.
This Court is of the considered view that rejection of petitioners' Representation vide order of 27th February, 2007 is wholly unjustified as primary wing of petitioner-School is not being run by the same staff. The teachers in the primary section and the secondary section of petitioner school are different and infact their set up is quite different. Impugned order of 27th February, 2007 does not indicate that any inspection of petitioner-School was carried out. Had it been so done, then a clear picture would have emerged. Rules 100 and 102 of Delhi School Education Rules, 1973 have been referred to in the impugned order while considering petitioner's application filed in the year 1994 and the qualifications as amended vide Government Notification of 19th June, 1998 has not been taken into consideration and so, rejection of petitioner's Representation is clearly erroneous. If, for any reason, respondent chooses not to grant any exemption to petitioners while considering the case of petitioner under Rule 66 of Delhi School Education Rule, 1973, then while excluding such a teacher/staff, the quantum of Aid to be granted can be accordingly determined, but the very object of providing free education to the children of the primary classes W.P.(C) 6803/2002 Page 10 of 11 cannot be defeated by refusing to grant Aid to educational institutions like that of petitioners, who providing free education.
In the light of the aforesaid, impugned order of 27 th February, 2007 is hereby quashed with direction to respondents No.1 and 2 to consider the case of petitioners for the Grant-in-Aid w.e.f. 1st April, 2001. Petitioners are directed to file a fresh application seeking Grant-in-Aid from 1st April, 2001within a period of four weeks and it is expected that as and when such application is received by second respondent, the same would be decided within a period of 12 weeks by passing a speaking order and if need be, opportunity of hearing be granted to petitioners before deciding petitioners' fresh application for Grant-in-Aid.
With aforesaid directions, this petition is disposed of while leaving the parties to bear their own costs.
(SUNIL GAUR) JUDGE NOVEMBER 06, 2015 s W.P.(C) 6803/2002 Page 11 of 11