Gujarat High Court
Gnanganga Education Society & 2 vs State Of Gujarat & 3 on 6 September, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/20287/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20287 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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GNANGANGA EDUCATION SOCIETY & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR SUDHIR NANAVATI, LD. SR. ADVOCATE WITH MR SAURIN MEHTA
FOR MS ANUJA S NANAVATI, ADVOCATE for the Petitioner(s) No. 1 - 3
MR MANAN MEHTA, AGP for the Respondent(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 06/09/2017
CAV JUDGMENT
Heard learned senior advocate Mr.Sudhir Nanavati assisted by learned advocate Mr.Saurin Mehta Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT for learned advocate Ms.Anuja Nanavati for the petitioners and learned Assistant Government Pleader Mr.Manan Mehta for the respondent authorities.
2. The petitioners have prayed to quash notice dated 01st December, 2016. Further prayed to quash order of even date passed by respondent No.2-District Education Officer, Rajkot.
2.1 The impugned notice alleged certain irregularities in the functioning of the petitioner No.2 school run by petitioner No.1 society, stating inter alia that the competent officer had visited the school place on 29th November, 2016, but the Principal was not present at the time of inspection. It was alleged that the school did not have approval from the Central Board of Secondary Education (CBSE), that No- objection Certificate was not produced before the state governmental authorities for commencing the CBSE course, that the CBSE school was not housed in a separate building and that the playground was not available in the school premises. Alleging such and other irregularities like non-maintaining of Register, the petitioners were called upon to submit explanation.
2.2 Another communication of even date was sent to the petitioners conveying the decision, and it is the case of the petitioners that both the notice and the said communication reflecting the decision, were dispatched and received in the same envelope. In that the District Education Officer recorded his findings and decisions to convey them to the petitioners that Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT the CBSE school run by the petitioners right from the Academic Year 2011-12 was unauthorised. The District Education Officer directed to refund that the fees received from the students admitted during the period between Academic Years 2011-12 and 2016-17.
3. The petitioner No.1-Gnanganga Education Society, registered under the provisions of the Societies Act, 1860 in the year 2002, runs petitioner No.2 - Shree K.G. Dholakiya School. It is the case of the petitioners that upto 5th standard recognition was issued under Rule 13(8) of the Right to Education (Gujarat) Rules from the office of the Director of Primary Education. The petitioner No.2 school was granted registration from June, 2012. It is the further case that affiliation from CBSE was already applied and that in view of Rule 3 as amended on 08th July, 2013 in Chapter II of the CBSE Affiliation Laws, petitioner school was merely required to intimate State Education Department for seeking affiliation. It was further averred that the Affiliation Committee of the CBSE submitted Inspection Report after undertaking inspection of the school on 20th October, 2016 and recommended grant of affiliation for secondary level on certain conditions regarding laboratory, teachers and library books. It was stated that the report was awaited for the final decision and pending such process, the impugned notice and decision dated 01st December, 2016 came to be issued.
4. The challenge in the petition, thus, is addressed in two folds. The contention is that on one Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT hand show-cause notice was issued asking the petitioners to submit an explanation, and by same stroke of pen, the authority arrived at the adverse findings against the petitioner and took decision in respect of the allegations in the show-cause notice, which was without allowing the petitioners to explain their stand.
4.1 On behalf of respondent No.2, Education Inspector, District Education Officer's Office, Rajkot, filed reply to submit that complaints were received against the school, that the school had been running CBSE curriculum without affiliation. It was stated that District Education officer who was the competent authority inquired into and thereafter issued notice to pass the decision. It was contended that school started taking fees as per the CBSE structure and without having affiliation with the CBSE Board, it collected from the students the amount of fees approximately Rs.07,01,95,200/-. It was contended that the said account was in breach of the provisions of the Right of Children to Free and Compulsory Education Act, 2009.
4.2 Learned Assistant Government Pleader on the basis of the contention of the affidavit-in-reply submitted that the petitioner school made application to the CBSE Board for approval in the year 2014-15 and the school has been granted affiliation for three years only from 01st April, 2017 to 31st March, 2020. It was submitted that the petitioner school had played mischief by running a school without affiliation with Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT the CBSE Board and by collecting huge amount of fees from the students as if it had CBSE Board's approval. It was contended that since show-cause notice was issued, it was always permissible for the petitioners to approach the authority concerned and explain the stand in defence and that the petition was subject matter.
4.3 The petitioners have filed additional affidavit in support of the petition in which it was stated inter alia that during the pendency of the petition since some of the students pursuing students in Standards I to VIII in the school, requested to refund the differential amount of fees which was charged on the basis of Central Board curriculum. It was stated that 147 students were refunded the fees and they collected the total amount which comes to Rs.11,57,000/-. It was further stated that inspite of interim stay granted by this Court against operation of letter dated 05th January, 2017, District Education Officer, in violation of the said order, called upon the petitioners to provide the details.
5. It is the say of the petitioners that a composite provisional affiliation of the Central Board of School Education examination for a period of three years with effect from 01st April, 2017 to 31st March, 2010 has already been given to the petitioners by Central Board as per its letter dated 19th April, 2017. Learned senior advocate for the petitioners submitted that this affiliation is composite under bye-law clause XXVII, bye-law II of Chapter I which means Page 5 of 10 HC-NIC Page 5 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT affiliation for Class 1 to Class 10 or Class 1 to Class 11 or Class 1 to Class 12. It was further submitted that application for affiliation was required to be made as per bye-law No.15(10) by the school only when the school reaches the stage of Class 5th, Class 8th or Class 10th. He also invited the attention of the Court to the averments made on oath in the rejoinder affidavit that, "... during the pendency of the present petition, the Petitioner School had refunded the difference of fees between the State Board fees and the Central Board fees to 147 students and the said fact was also placed on record vide affidavit to the Petitioners dated 11.01.2017 (Page 52). Subsequently, the Petitioners have further refunded the difference of fees to 462 students which is an amount of Rs.32,39,000/- in aggregate. ... ... ... parents of all such 462 students have submitted a letter of consent confirming that they have received difference of school fees and that there is no dispute or confusion regarding the school, its affiliation, infrastructure or academics and have also consented thereto.".
5.1 Thus in a nutshell the stand of the petitioners in response to the impugned show-cause notice and the impugned decision has been that as per bye-law No.15(10) of Chapter III of the CBSE Affiliation Policy, the proper stage for making application to seek the affiliation with the Central Board was the stage of Class 5th, Class 8th or Class 10th and that in accordance therewith, an application was made for the approval of the CBSE and the same has Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT now been granted as above. The petitioners placed on record the details of the refund of fees given to 462 students. As regards the say of the authorities that amount of Rs.07,01,95,200/- was collected, it is stated that details of collection of such amount is not given and that the fees have already been refunded to the students.
6. With the compass of facts and contentions emerged from the pleadings was as above, it was the simultaneous action on part of District Education Officer to issue a show-cause notice simultaneously and and passing the decision on the allegations in the show-cause notice at the same breadth without giving opportunity to the petitioners, was the cause of grievance and the challenge. When the authority issued show-cause notice on 01st December, 2016 and on the same date issued another communication drawing conclusions and passing the decisions, the breach of principles of natural justice was manifest and evident.
7. The whole purpose of giving show-cause notice stating the alleged facts was to seek explanation from the petitioners. It was only upon the petitioners had opportunity to submit explanation, the authority could have reached to a conclusion after taking into account the facts and grounds stated in defence. It is incomprehensible in terms of the conduct of the authority as well as the compliance of the natural justice that on the same day when show- cause notice was issued, findings were recorded, Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT decisions were taken and both the show-cause notice as well as decisions were intimated at one go.
7.1 The petitioners were clearly denied the opportunity of being heard in respect of the allegations in the show-cause notice. In this view, a clear prejudice occasioned to the petitioners. The action on part of the respondent-District Education Officer became a pre-judged and a pre-determined opinion. It was bereft of fair procedure and disregarded the imperatives of principles of natural justice and giving reasonable opportunity of defence.
7.2 In Oryx Fisheries (P) Limited v. Union of India [(2010) 13 SCC 427], the Supreme Court highlighted as to what is reasonable opportunity and the importance to avail right to defend before taking decision on the show-cause notice. It was observed, "Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt of otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice." (Para 32) 7.2.1 It was further observed, "The principle that justice must not only be done but it must eminently appear to be done as well as is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it." (Para 33) 7.3 When the District Education Officer failed to afford opportunity of hearing and did not allow the petitioners to raise their defence, the action and the Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT decision became prone to the finding of bias, in any case, it amounted to total non-application of mind with blatant breach of natural justice. This resulted into sufferance of prejudice to the petitioners who are deprived of opportunity of defence and put-forth their case. The impugned notice dated 01st December, 2016 as well as decisions reflected in the communication dated 01st December, 2016 are liable to be set aside.
8. It was the submission on behalf of the respondent authorities that irregularities committed by the petitioner school including collection of fees on the basis of CBSE board course were serous and could not be taken leniently. Even if the submission is taken on its face value, it has to be mentioned that the allegations as regards collection of fees from the students was not part of the show-cause notice dated 01st December, 2016. The action could not have been justified on the ground when such ground is not made part of such show-cause notice. It would be another ground of causing prejudice to the petitioner in the matter of its defence. Even otherwise, petitioners stated by filing further affidavit on oath that difference of fees have been returned to 462 students and therefore, no allegation could survive on that score. In any view, it is not permissible to the respondent authorities to improve upon show-cause notice by raising a new ground and tried to justify the action on the basis of such newly made out case. No opinion is required to be expressed on this score except that the case of the authorities on the aspect Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Sep 09 07:41:30 IST 2017 C/SCA/20287/2016 CAV JUDGMENT of charging of fees have been answered by the petitioner by saying that the amount of fees was returned. It is for the authorities to arrive at proper conclusion about the next course of action in respect of the said aspect.
9. For the aforesaid reasons, the said impugned notice as well as communication reflecting the impugned decision are hereby set aside.
10. It may be observed that if the respondent authorities are of the view that the ground still exists to proceed against the petitioners, and if the law permits such course of action, the authorities are not precluded to proceed, but in accordance with law only.
11. Petition is allowed. Rule is made absolute as above.
(N.V.ANJARIA, J.) Anup Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Sep 09 07:41:30 IST 2017