Madhya Pradesh High Court
Association Of Unaided C.B.S.E. ... vs General Administration Department on 17 June, 2016
1
Writ Petition No.7027/2015
17.06.2016
Shri Arvind Agnihotri, learned counsel for the
petitioner.
Heard on the question of admission.
This writ petition has been filed by Shri Anil Dhupar,
President of Association of Unaided CBSE Schools through
Shri Aseema Shrivastava, advocate and prayed for the
following relief: -
"7.1 That, appropriate writ, order or direction
in the nature of mandamus or certiorari or any
other appropriate writ or direction as deemed
fit may kindly be issued for quashing the
impugned order bearing No.1804 dated
31.07.2015 passed by Collector & District
Magistrate, Indore.
7.2 That, appropriate writ, order or direction
in the nature of mandamus or certiorari or any
other appropriate writ or direction as deemed
fit may kindly be issued for quashing the
impugned order bearing No.5602 dated
16.07.2015 passed by District Education
Officer, Indore.
7.3 That, cost of this petition may kindly be
imposed on the respondents for willfully,
knowingly and intentionally harassing the member school of the petitioner's association for some illegal gratification due to which it had suffered uncountable stress along with grave physical and mental agony.
7.4 That, this petition may kindly be allowed in the interest of justice.
7.5 That, any other relief which this Hon'ble Court might deem fit and consider it necessary for the purpose and which it may find appropriate, in this particular case, may also be granted."
2In clause No.2 and 3 of the writ petition, the petitioner has not stated that action has already been challenged by Spring Valley Public School by filing Writ Appeal No.40/2016 (Principal, Spring Valley Public School v. Lateef Patel s/o Gani Patel & another). This Court after hearing the learned counsel for the parties by order dated 28.04.2016 dismissed the appeal by passing the following order: -
"Writ Appeal No.40/201628.04.2016 Shri Aseem Shrivastava, learned counsel for the appellant.
Shri Faizal Khan, learned counsel for the respondents.
They are heard.
By this intra-court appeal, the appellant/school is challenging the order of the Writ Court dated 04.02.2016 passed in W. P. No.7665/2015 whereby, the writ petition filed by the respondents have been allowed with a direction to the appellant/school to issue transfer certificate in respect of children of the respondents positively by tomorrow i.e., on 05.02.2016. The respondents shall appear before the Principal, Spring Valley Public School on 05.02.2016 during the working hours and the school shall issue transfer certificate in respect of both the children.
2. Learned Writ Court also awarded cost of litigation of Rs.10,000/- in respect of each child and directed that the school while handing over the transfer certificate shall issue a cheque in respect of both the students in the name of the respondents, as the children are minor.
3. Brief facts of the case are that the respondents were students of Spring Valley Public School in the academic year 2013-2014 3 in Class-II and they have successfully passed the II standard examination, mark-sheet was issued by the school and as they were belonging to the weaker sections of the society and were not having means to pay the fees, decided to withdraw their children who were students of Class-II viz. Irfan Patel and Armaan Patel.
4. It is also stated that at no point of time, any application was preferred for admission to Class-III for the academic year 2014-2015. However, inspite of repeated requests, the school has not granted transfer certificate and the children have lost two valuable years. On 03.11.2015, the writ petition was filed but inspite of issuance of notice by the learned Writ Court, transfer certificate has not been granted to them and due to the act of the school, they have lost two valuable years. It was argued before the learned Writ Court that the fees for entire academic year 2013-2014 was Rs.25,000/- per child and one child has paid Rs.21,800/- and the other child has paid Rs.21,870/- and as the balance amount which is less than Rs.4,000/- was not paid by both the children, school has not granted transfer certificate.
5. The stand of the school before the learned Writ Court was that as per by-laws framed by the Central Board of Secondary Education to which the school is affiliated, the action of the school is justified in not issuing the transfer certificate to the students.
6. The guardian of the students approached "Jan Sunwai" (public hearing) of the Collector, Indore on 14.07.2015. Learned Collector on 31.07.2015 after recording the statement of Principal of the school has directed to release the transfer certificate in respect of both the children. The aforesaid order of the Collector dated 31.07.2015 was passed after granting an opportunity of hearing to the school and the same has not been challenged by the school in any appeal. Due to non-issuance of transfer 4 certificate, both the children have lost their valuable two years. Their parents are from very poor background. In the writ petition, parents of the children very categorically stated that they have paid the fees of Rs.21,800/- and Rs.21,870/- respectively for the academic year 2013-2014. The school has issued the mark- sheet holding that the children are entitled for promotion to Class-III. The children have not taken admission afresh in Class-III nor have attended the school at any point of time in respect of academic session 2014-15.
7. Considering the aforesaid, learned Writ Court was of the opinion that the children have not attended the class for the academic session 2014-2015 nor taken admission in the said academic session but the writ petition was filed in November, 2015. The by-laws will not be applicable in the peculiar circumstances of the case and directed to issue transfer certificate and also awarded cost @ Rs.10,000/- per child.
8. Learned counsel for the appellant has drawn our attention to the decision of the Bombay High Court in the case of Jayshree Vijay Mundawar vs. Principal/Head Mistress of Ashoka Universal School, Nashik & Others reported in 2015 (5) ABR 163, decision of Gwalior Bench in the case of Little Angels Shiksha Samiti vs. State of M. P. & others reported in 2015 (3) JLJ 137 and submitted that learned Writ Court exceeded his jurisdiction while allowing the writ petition and imposing cost as well as directed the school to issue transfer certificate in respect of children of the respondents positively by 05.02.2016. In respect of academic session 2014-2015, he has drawn our attention to Page-88 of the writ appeal, which is daily attendance register for the month of April of Class-III and submitted that name of the respondents are at serial No.2 and 14 and they have attended the school. If we accept the aforesaid, then we presume that the admission 5 was granted in Class-III without charging any fees. He has also drawn our attention to letters dated 02.07.2015 (Annexure-R/1) and 16.07.2015 (Annexure-R/2) of the District Education Officer (DEO) and submitted that DEO had not justified to waive off the fees and direct the private school, which is not under the control of the government to return the transfer certificate within a period of two days. He has further drawn our attention to Clause-8 of the notification dated 28.06.2012 and Rule 11.2 and submitted that school has to adhere to the provisions of the by-laws of the CBSE because the appellant school is affiliated school of CBSE and submitted that in case a student leaves the school before completion of session, prorata return of quarterly/term/annual fees should be made and he is liable to pay the balance amount, then only, transfer certificate will be returned to them and prayed that the impugned order be set aside and the writ appeal be allowed.
9. On 09.02.2016, we have issued show cause notice on both counts and stayed the recovery part of the order passed by the Writ Court, which means that there was no stay for issuance of transfer certificate of both the children. Learned Writ Court also very categorically directed the school to issue transfer certificate positively on 05.02.2016 and directed both the children to appear before the school on 05.02.2016 during the working hours and the school shall issue the transfer certificate to them.
10. Our order has not been complied with. This shows that the school has no respect or regard to the order passed by this Court. On merits, there is no material that at any point of time, any application was preferred by the respondents for admission in the academic session 2014-2015. Both the children are minor and were student of Spring Valley Public School in Class-II in the academic year 2013-2014 and they have successfully passed 6 the Class-II examination. It is also not in dispute that for the entire academic session 2013-2014, out to total fees of Rs.25,000/- per child, they have paid Rs.21,800/- and Rs.21,870/- respectively and the balance amount, which is less than Rs.4,000/- was not paid by them and for want of the aforesaid amount, the school has not granted the transfer certificate and prepared attendance register to show that they have been admitted to Class-III and attended their classes, when there was no application for admission and applied for transfer certificate immediately after passing of Class-II, the said defence of the school could not be accepted. The same is not according to the order passed by the Collector, DEO and the Writ Court on 04.02.2016. Even, if we accept the contention of the appellant, then also, the school cannot withheld the transfer certificate for want of balance amount of tuition fees. The proper remedy for the school is to recover the amount by taking appropriate proceeding, in accordance with law. The appellant is the author of the situation and thus, learned Writ Court rightly awarded cost of Rs.10,000/- to each of the child.
11. As per the decision of the Apex Court in the case of K. Shekhar vs. Indiramma & others reported in AIR 2002 SC 1230, the law is well settled that the actions of the educational institution are not immune from judicial scrutiny. Indeed to preserve the high reputation, there is a greater need to avoid even the semblance of arbitrariness or extraneous considerations colouring the institution's action.
12. Considering the aforesaid facts and circumstances of the case, we are of the view that it is highly unfair on the part of the appellant to withhold the transfer certificate because of non-payment of tuition fees of meagre amount of Rs.4,000/-. The impugned order dated 04.02.2016 passed by the learned 7 Writ Court is just and proper. The writ appeal has no merit and is accordingly, dismissed with a direction to release the transfer certificate of the respondents along with cost as directed by the learned Writ Court, within a period of three days from the date of order, failing which the respondents are at liberty to draw contempt proceedings against the appellant/school. We also impose cost of Rs.20,000/- on the school. The cost amount shall be paid to the students by way of cross-cheque, within a period of seven days from today, failing which the guardian of the minor children are at liberty to take appropriate steps for drawing contempt proceedings for recovery of the said amount. Compliance report to this effect be also submitted before the Principal Registrar of this Court.
13. Writ appeal stands dismissed."
The judgment of Division Bench in Writ Appeal No.40/2016 will squarely cover the issue involved in the writ petition. Thus, on the same terms, we dismiss the writ petition, but without any order as to costs.
(P.K. Jaiswal) (Vivek Rusia)
Judge Judge
Pithawe RC