Delhi High Court
Social Jurist A Civil Rights Group vs Govt. Of N.C.T. Of Delhi & Anr on 7 May, 2015
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th May, 2015.
+ W.P.(C) No.43/2006
SOCIAL JURIST A CIVIL RIGHTS GROUP ..... Petitioner
Through: Mr. Ashok Agarwal with Mr.
Khagesh B. Jha, Advs.
Versus
GOVT. OF N.C.T. OF DELHI & ANR. ..... Respondents
Through: Mrs. Avnish Ahlawat, Adv. for R-1.
Mr. Ajay Arora with Mr. Sandeep
Singh, Advs. for MCD.
Mr. Ajay Verma, Adv. for DDA.
Mr. Balendu Shekar with Ms. Somya
Rathore, Advs. for EDMC.
Mr. Hirein Sharma with Mr. B.S.
Tomar, Advs. for
Intervener/applicant.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
CM No.20634/2014 (of the petitioner for directions) & CM No.7769/2015 (of Jan Vikas Shiksha Parishad for impleadment).
1. This petition under Article 226 of the Constitution of India, filed as Public Interest Litigation, seeking a direction to the Government of National Capital Territory of Delhi (GNCTD) and the Municipal Corporation of Delhi (MCD) to take action for closure of all unregistered/unrecognized W.P.(C) No.43/2006 Page 1 of 17 private schools in Delhi was disposed of vide judgment dated 8th February, 2008 with a direction to the Directorate of Education, GNCTD, i) to undertake a survey and identify unauthorized and unrecognized educational institutions running in Delhi; ii) to call upon such institutions to apply for post facto permission in terms of Section 3(2) of the Delhi School Education Act, 1973 (School Act); iii) upon receipt of such applications, have the said institutions inspected to evaluate the infrastructural and other facilities available in view of the requirements of Section 4 of the School Act read with Rules 50 and 51 of the Delhi School Educational Rules, 1973; iv) to, if find the said institutions satisfying the said conditions, to grant them recognition; v) if though do not find the institutions to be immediately satisfying the requirements for recognition but capable of achieving the same in near future, grant them time to do so; and, vi) to take steps for closure of the institutions which, either do not apply at all for recognition or are not found to be meeting the criteria for recognition.
The Directorate of Education, GNCTD, MCD, New Delhi Municipal Council (NDMC) and Delhi Development Authority (DDA) were also directed to submit an Action Taken Report.
W.P.(C) No.43/2006 Page 2 of 17
2. Action Taken Reports filed from time to time were perused and further directions issued.
3. The Supreme Court, vide order dated 2nd April, 2009 in SLP (C) No.21952/2008 preferred by some of the private unaided schools against the judgment dated 8th February, 2008, on the representation of the Directorate of Education, GNCTD that survey had been conducted by a Committee whose report was awaited, directed that the schools be not closed till the Report of the Committee was received and the final decision thereon taken.
4. The proceedings in this writ petition were accordingly closed vide order dated 15th April, 2009.
5. CM No.20634/2014 has been filed by the petitioner contending that the directions issued by this Court in judgment dated 8th February, 2008 remain uncomplied and as a result hundreds of unauthorized and unrecognized pre-primary and play schools continue to function and seeking a direction to the respondents to submit an Action Taken Report.
6. Notice of the application was issued.
7. An affidavit dated 24th April, 2015 has been filed by the Directorate of Education, GNCTD stating, (i) that survey of all unrecognized schools in Delhi had been conducted and provisional recognition has been granted to W.P.(C) No.43/2006 Page 3 of 17 almost 800 schools with a condition that they will fulfill the conditions of recognition as laid down under the School Act and the Rules; (ii) that a Circular dated 22nd March, 2013 was also issued asking all the unrecognized schools having the required area of land as per the prescribed norms, to apply for recognition; (iii) the unrecognized schools situated in unauthorized/undeveloped/regularized colonies and possessing the required land area were asked to seek recognition; (iv) primary education is looked after by the MCD/NDMC/Delhi Cantonment Board, no action was taken in respect of nursery/play schools/crèches; (v) nursery/play schools/crèches are not covered under the Right of Children to Free and Compulsory Education (RTE) Act, 2009 as children from the ages of 6 to 14 years only are covered under the provisions of the said Act; so these institutions are not dealt with by the Directorate of Education, Government of India; (vi) however since vide judgment dated 5th November, 2014 in W.P.(C) No.4607/2013 titled Justice for All Vs. GNCTD directions had been given to the Directorate of Education to monitor nursery/play schools/crèches for implementation and monitoring of land lease conditions, implementation of the said direction was underway; (vii) that the matter regarding running of 300 unrecognized schools in Delhi, despite all efforts of the Directorate of Education as W.P.(C) No.43/2006 Page 4 of 17 narrated above is pending consideration of the appropriate authorities; and,
(viii) a huge responsibility of adjusting students already studying in these schools, by enrolling them in other appropriate schools convenient to them is a major task which has to be carried out before taking action of closure.
8. The East Delhi Municipal Corporation (EDMC) has also filed an affidavit dated 28th April, 2015 stating that it had granted provisional recognition to such schools and 107 schools had applied to it for recognition and of which 58 had deposited the processing fees while the others were yet to deposit the process fee.
9. CM No.7769/2015 for impleadment has been filed by Jan Vikas Shiksha Parishad claiming to be a Society established with the objective of providing support to unregistered, unaided and unrecognized primary schools. It is pleaded, (i) that the schools seeking closure of which the petition was filed were not impleaded as a party to the petition and not heard before the judgment dated 8th February, 2008; (ii) that the closure of such schools will jeopardize the future of thousands of children and affect the livelihood of hundreds of school teachers nearly 100% of whom are women;
(iii) that since the judgment dated 8th February, 2008, the RTE Act had come into existence on 26th August, 2009 inter alia directing the W.P.(C) No.43/2006 Page 5 of 17 unrecognized/unaided primary schools to seek recognition from Directorate of Education for the purpose of regulation and conduct of such primary schools; (iv) that in furtherance of the same, Circular dated 22nd March, 2013 under Sections 18 & 19 of the RTE Act was issued; (v) that as per the Circular, regulations had been prescribed for recognizing primary schools for the purpose of conducting education up to the primary level i.e. Class-Vth ; (vi) that the minimum area of land prescribed was of about 200 sq. yds. besides the requirement consisting of minimum facility of five class rooms and other prescribed facilities; (vii) that the parameters prescribed in the Circular dated 22nd March, 2013 for recognition are harsh and arbitrary;
(viii) that the unrecognized private primary schools provide education to the children of underprivileged socio-economically backward citizens; (ix) that these unaided/unrecognized primary schools are a blessing in disguise for the Directorate of Education to promote its goal of RTE Act; (x) that most of the unrecognized private schools are unable to fulfill all the criteria laid down in the Circular dated 22nd March, 2013 for recognition; (xi) it is for this reason only that provisional recognition is being extended from time to time; (xii) that the applicant Society had made a representation for relaxation of the parameters for recognition; (xiii) that 1500 unrecognized private W.P.(C) No.43/2006 Page 6 of 17 schools would be affected by the direction if any now issued for closure thereof; and, (xiv) that all the said questions cannot be decided in the application filed by the petitioner and the petition be revived and an opportunity be given to the applicant Society to file a counter affidavit.
10. We have heard the counsel for the petitioner and the counsels for the Directorate of Education, GNCTD, MCD, DDA, EDMC and the counsel for the applicant Society.
11. This Court, in judgment dated 8th February, 2008 in this petition, has held, (i) that the School Act empowered the Administrator, Delhi to regulate education in all the schools in Delhi; thus the operation of the School Act is not limited to recognized schools only; (ii) that a new school can be established only with the permission of the Administrator and subject to the fulfilment of the requirements stipulated in the School Act and the Rules framed thereunder; and, (iii) that the GNCTD had however failed to enforce the provisions of the School Act resulting in there being a larger number of unrecognized and unauthorized schools in Delhi than those that are authorized and recognized.
12. After the aforesaid judgment, the RTE Act was notified on 26th August, 2009 and came into force on 1st April, 2010 and though under the W.P.(C) No.43/2006 Page 7 of 17 School Act and Rules there was no express prohibition against establishing a school without seeking approval/recognition therefor from the Directorate of Education, GNCTD (and owing to which this Court had to adjudicate this aspect vide judgment dated 8th February, 2008), Section 18 of the RTE Act prohibits a school other than a school established, owned or controlled by the appropriate government or the local authority from being established or functioning without obtaining a certificate of recognition. However in the light of the admitted position that a large number of unrecognized schools exist in Delhi, Section 19(2) of the said Act gave a time of three years to such schools to take steps to fulfil the norms and standards of recognition.
13. "School" in Section 2(n) of the RTE Act has been defined as any recognized school imparting elementary education. "Elementary education"
is defined in Section 2(f) of the RTE Act as education from Ist Class to VIIIth Class. It thus follows that no school imparting education from Ist Class to VIIIth Class can either be established or if already functioning prior to the coming into force of the RTE Act can continue to function after a period of three years from the coming into force of the RTE Act. A Division Bench of this Court in Social Jurist, A Civil Rights Group Vs. Government of NCT of Delhi AIR 2013 Delhi 52 has held that the RTE Act is not applicable to W.P.(C) No.43/2006 Page 8 of 17 nursery schools but has suggested to the Government to consider extending the applicability of the RTE Act to nursery schools as well.
14. The petitioner, in the application under consideration has highlighted the continued functioning of hundreds of unauthorized and unrecognized „pre-primary and play schools‟ only. However a perusal of the writ petition and the judgment dated 8th February, 2008 therein shows that the same was not confined to pre-primary and play schools only but was with respect to all schools where „children between the age group of 2 to 18 years‟ were stated to be „studying in classes LKG to XIIth‟ (refer para 3 of the writ petition). Thus the judgment dated 8th February, 2008 in this petition was not confined to pre-primary and nursery schools only and was with respect to schools where children from age group of 2 to 18 years were studying in classes LKG to XIIth.
15. If the word „school‟ in Sections 18 and 19 of the RTE Act were to be read as a school as defined in Section 2(n) of the Act then the provisions of Sections 18 and 19 would have applicability to only those schools which are imparting education from Ist Class to VIIIth Class and would not cover pre- primary and play schools qua which this application has been filed. To us, however it appears that the context in which the word „school‟ has been used W.P.(C) No.43/2006 Page 9 of 17 in Sections 18 and 19 of the RTE Act is different from the definition of the word „school‟ in the Act. Needless to state that the definitions in Section 2 thereof are „unless the context otherwise requires‟. We are of the view that the legislature while enacting the RTE Act could not have mean that while a school imparting education from Class I to Class VIII necessarily has to be a recognized school; a school imparting education from Class IX to Class XII or a pre-school or pre-primary school need not to be recognized. Legislature, while enacting the RTE Act is deemed to be aware of the judgment dated 8 th February, 2008 in this petition which, even in the absence of any such prohibition in the School Act had interpreted the provisions thereof as prohibiting any school imparting education to children between the age group of 2 to 18 years and which would cover pre-primary and play schools as well as Classes IX to XII, from functioning without obtaining recognition from the Directorate of Education of the GNCTD. However since a Division Bench of this court as aforesaid has already held that the RTE Act does not apply to nursery schools, we neither feel the need to say anything further or the need to refer the question, in this application, to a larger bench. The fact remains that the direction in the judgment dated 8th February, 2008 in this petition at least qua Classes I to VIII of the schools was interdicted by W.P.(C) No.43/2006 Page 10 of 17 the RTE Act.
16. It would therefore be seen that though the judgment dated 8th February, 2008 of this Court directed the survey to be conducted and an opportunity for obtaining recognition to be given and closure of the schools remaining unrecognized but because of the statutory intervention vide Section 19(2) of the RTE Act, the schools were granted a period of three years to obtain recognition and which period of three years expired on 31 st March, 2013.
17. We had owing thereto, on 11th February, 2015 itself enquired from the counsel for the petitioner as to what is the enforceability of the judgment dated 8th February, 2008 in the light of the subsequent statutory intervention.
18. The counsel for the petitioner today has agreed that in the light of the statutory intervention aforesaid, the direction in the judgment dated 8th February, 2008 could not have been enforced. He however contends that the time given by Section 19(2) of the RTE Act for the unrecognised schools to obtain recognition by 31st March, 2013 is also now over, at least now the unrecognized schools should be shut down as directed by this Court.
19. Per contra, counsels for the opposite parties state that the shutting down of the schools still remaining unrecognised would entail leaving W.P.(C) No.43/2006 Page 11 of 17 thousands of students studying therein without a school. They state that attempts are underway to adjust the said students in other schools and whereafter only the closure can be effected.
20. The counsel for the applicant Society also states that a representation has been made for relaxing the norms of recognition and which representation is under consideration and till the decision thereon, the schools should be allowed to function. He also contends that the said schools are performing a function which the State ought to have performed, of providing educational facilities and are thereby serving the society and closure thereof would not be in public interest.
21. We have considered the rival contentions.
22. Supreme Court, as far back as in State of Orissa Vs. Bhupendra Kumar Bose AIR 1962 SC 945, finding the Government to have issued an ordinance validating a election with respect to one municipality as well as validating electoral rolls prepared in respect of other municipalities and both of which had been set aside by an earlier judgment of the Court and faced with a challenge to the said ordinance held that though a judgment delivered by the High Court under Article 226 must be respected but that is not to say that the legislature is incompetent to deal with the problems raised by the W.P.(C) No.43/2006 Page 12 of 17 said judgment if the said problems and their proposed solution are otherwise within the legislative competence. It was further held that the lapsing of such an ordinance would not revive the judgment setting aside the election and the electoral rolls. It was clarified that if the right created by the statute (ordinance) is of an enduring character, that right cannot be taken away because the statute by which it was created has expired.
23. Similarly, in Smt. Indira Nehru Gandhi Vs. Sh. Raj Narain 1975 Suppl. SCC 1, it was held that the power of the legislature to validate matters which have been found by judgments or orders of competent courts to be invalid or illegal is a well known pattern; the legislature validates acts and things done by which the basis of the judgments or orders of competent courts is changed and the judgments and orders are made ineffective; the effect of validation is to change the law so as to alter the basis of any judgment which might have been given on the basis of old law and thus make the judgment ineffective; the rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the legislature, rendering the basis of the judgment non est. W.P.(C) No.43/2006 Page 13 of 17
24. What has happened in the present case is that after this Court had vide judgment dated 8th February, 2008 in this petition directed the unrecognized schools to be identified and giving of an opportunity to them to obtain recognition and closure of the schools remaining unrecognized, according to the petitioner all within six months of the judgment i.e. by August, 2008, the legislature allowed the unrecognized schools to function till 31 st March, 2013. The counsel for the petitioner also admits that in view of the said development i.e. of time instead of till August, 2008 as per the judgment, till 31st March, 2013 having been given vide the RTE Act for the unrecognized schools to obtain recognition, the judgment could not have been enforced till 31st March, 2013. His contention however is that now that the said time is also over, the judgment should be enforced.
25. We however entertain doubt whether the judgment which had once ceased to have force owing to the interdiction of the RTE Act would so stand revived. The School Act, on consideration of the provisions whereof the judgment in the writ petition was pronounced did not give any such time limit for closure of the unrecognized schools. It was for this reason that this Court had to intervene to direct closure. The judgment of this Court also did not fix any time limit for closure save for the direction, of the Action Taken W.P.(C) No.43/2006 Page 14 of 17 Report to be filed within six months. The counsel for the petitioner contends that the closure was to be within six months. We however entertain doubt qua the correctness of the said contention also. This Court had also provided for grant of time to the schools to obtain recognition.
26. We however do not feel the need to adjudicate whether the judgment could stand revived after 31st March, 2013 for the reasons hereinafter recorded.
27. Though undoubtedly in terms of Sections 18 & 19 (2) of the RTE Act also, after 31st March, 2013 unrecognized schools cannot in law function but we cannot shut our eyes to the harsh reality, of the children studying therein being left without any school to go to, if a direction for immediate shutting down of the said schools were to be issued.
28. The counsel for the petitioner of course contends that at the same time, the children cannot be permitted to continue studying in unrecognized schools, most of which are housed in dangerous buildings imperilling the safety of the children. He also contended that the children studying in said schools be shifted to the nearest Government/Municipal school.
29. We however asked the counsel for the petitioner whether not such shifting of all the students studying in unrecognized schools to the nearest W.P.(C) No.43/2006 Page 15 of 17 Government/Municipal school if ordered, would result in overcrowding thereof beyond their capacity resulting in the education of the children already studying in those schools also being affected.
30. The counsel for the petitioner has no reply.
31. Having given our considered thought to the matter we are of the opinion that giving a direction at this stage for immediate closure of all unaided schools would not be in public interest. In fact this Court in judgment dated 8th February, 2008 also, being conscious of the said fact, did not fix any time limit for the various steps directed therein to be undertaken and only directed Action Taken Report to be filed within six months thereof. The Supreme Court in the order in the SLP preferred thereagainst also, left the time schedule for closure to the discretion of the governmental authorities.
32. We therefore are of the opinion that it would be prudent to still leave the said aspect to the governmental authorities rather than this Court, ignoring the harsh consequences of issuing a direction for immediate closure of the unrecognized schools, ordering so. We nevertheless direct the Directorate of Education, GNCTD, MCD, NDMC, EDMC and the DDA to ensure immediate closure/shifting of those unrecognized schools which are W.P.(C) No.43/2006 Page 16 of 17 housed in any premises which may pose a threat to the safety of the children studying therein. We also issue a direction to the concerned authorities to expeditiously decide the issue of regularization if any to be granted or the change if any to be made in the norms prescribed for recognition of the schools. We also remind the governmental agencies of Sections 18 and 19(2) of the RTE Act and with which they are in any case required to comply.
33. In view of the aforesaid, need for any further order on CM No.7769/2015 does not arise.
With the aforesaid, the applications are disposed of.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE MAY 07, 2015 „pp/gsr‟ W.P.(C) No.43/2006 Page 17 of 17