Delhi High Court
Mrs. Manju Tomar & Others vs Govt. Of Nct Of Delhi & Others on 13 July, 2009
Author: Sunil Gaur
Bench: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: July 07, 2009
Judgment pronounced on: July 13, 2009
+ W.P. (C) No. 13044-55/2006
% Mrs. Manju Tomar & Others ... Petitioners
Through: Mr. Sanjay Parikh, Mr. Jitin Sahni and Ms. Mamta Saxena, Advocates.
versus
Govt. of NCT of Delhi & Others ... Respondents
Through: Nemo for respondent No. 1.
Ms. Madhu Tewatia, counsel for the respondent Nos .2 & 3.
Mr. H.S. Phoolka, Senior Counsel with Mr. Mohit Mudgil, Advocate for respondent No.4.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
Petitioners herein are the retired as well as serving staff of Khalsa Boys Primary School, Bangla Sahib, Ashoka Road, New Delhi, which is managed by Respondent No.4 -Committee. In the first round of litigation, Khalsa Boys Primary School had approached this court by way of W.P. (C) No. 9951-52/2005 regarding shifting of the school from NDMC area to a non-NDMC area and vide order of October 6, 2005, the aforesaid Writ Petitions were disposed of with the following directions:-
"Since an authority has been created to take necessary decision, I disposed of the writ petition with a direction to the Director of Education, NDMC, to decide within a period of four weeks from the date of the present order whether ex-post facto sanction can be granted to Gurudwara Committee to close down the Khalsa Boys Public School for the reason, shifting of the school to Mata Sundri College being in an area outside the jurisdiction of the Council, and the Council granting grant-in-aid to schools operating only within its area, shifting of the school would amount to closure.
If the decision is accorded for closure of the school, Director of Education, NDMC shall take the necessary decision pertaining to the staff both teaching as well as non-teaching employees of Khalsa Boys Public School.
Till the Director of Education takes necessary decision, the Gurudwara Committee would pay full wages to the teaching as well as non-teaching staff of the school. Amounts liable to be deposited or credited in the provident fund account of the employees would be duly credited/deposited."
In the light of the aforesaid directions, Respondent No.3 had vide order of February 14, 2006, (Annexure P-2) declined the ex-post facto approval to close down the Khalsa Boys Primary School. The aforesaid order is under challenge in this petition by the school staff, i.e., Petitioner Nos.1 to 5 and the retired teaching staff, i.e., Petitioner No. 6 to 12 of the aforesaid school in question.
The relief sought in this petition is that Petitioners No.1 to 5 absorbed in NDMC/Government aided schools and their salary/seniority be protected and in the alternative, compensation is sought by the Petitioners from the Respondents, the details of which are given in para 10 of the petition.
Petitioners No.6 to 12 have also claimed their pension/retiral benefits from the Respondents. This petition was amended to challenge the order of 14th February 2006 (Annexure P-2) vide which ex-post facto sanction to close down Khalsa Boys Public School was declined by Respondent No. 3.
In the counter affidavit filed by the contesting Respondent No. 2 and 3, the stand taken is that Respondent No. 4 had shifted the school in question in the area outside the jurisdiction of NDMC and that too without prior approval of the authorities, thus, the grant-in-aid facility granted by NDMC to Khalsa Boys Public School was rightly withdrawn as per the provisions of Delhi School Education Act and therefore the Petitioners cannot take the benefit of Rule 47 of the Delhi School Education Act and Rules, 1973 with regard to absorption of the employees, i.e., Petitioner Nos. 1 to 5. So far as grant of pensionary benefits to Petitioner Nos.6 to 12 is concerned, the stand taken by the contesting Respondent No. 2 and 3 is that the liability of the staff of the school in question lies with Respondent No.4 - Committee. Meaning thereby, the pensionary benefits to Petitioner Nos.6 to 12 are to be paid by Respondent No. 4 - Managing Committee of the school in question.
Respondent No. 4 - Managing committee of the school in its counter affidavit has firmly stated that offer was given to the serving staff of the school in question to join duty at the re-located place, but Petitioners No.1 to 5 did not opt to do so. The decision of shifting the school by Respondent No. 4 is said to be justified by taking the stand that it was done under the compelling circumstances as the school building was in dilapidated condition. As regards the relief claimed by the Petitioners, the stand of Respondent No. 4 is that the Petitioners are entitled to claim relief against NDMC and liability, if any, of the Managing Committee - Respondent No.4 is of 5% only. According to Respondent No. 4 - Committee, Petitioners are not entitled to claim any relief from Respondent No. 4.
After having heard counsel for the parties and upon perusal of the material on record, this court is of the view that although this case has been argued on merits and the relief claimed has been pressed for, but until and unless the legality of the impugned order (Annexure P-2) declining the ex-post facto sanction to the closure of the school of Respondent No. 4 is decided, the consequential relief of absorption and of the retirement benefits cannot be gone into. Therefore, this court proceeds to examine the validity of the impugned order (Annexure P-2) declining the ex-post facto sanction to the closure of the school of Respondent No. 4. For this purpose, the directions issued by this court in its decision in W.P. (C) No. 9951-52/2005 needs to be looked into.
The tenor of the decision (Annexure P-1) in W.P. (C) No. 9951-52/2005 is that grant of ex-post facto sanction to the closure of Respondent No. 4 school would provide necessary relief to the Petitioners, who should not be made to suffer for no fault of theirs. Impugned order (Annexure P-2) is assailed on the ground that it gives no reason for declining ex-post facto sanction for closure of school of Respondent No. 4.
A bare perusal of the impugned order (Annexure P-2) reveals that after giving the brief back ground, a resort is made to Rule 55 of the Delhi School Education Rules, 1973 to highlight that when a school is shifted to a different locality without previous approval of Competent Authority, the recognition as well as grant-in-aid facility granted by NDMC to the Khalsa Boys Public School stood withdrawn and therefore, there was no justification or requirement to seek ex-post facto approval to close down the school.
Though counsel for Respondents No. 2 & 3 has relied upon a decision of this court in "Ashok Kumar & Others vs. UOI & Others", reported as 2007 IX AD (Del) 550, but it will have no application to the instant case at this stage as the question of validity of the closure of the school of Respondent No. 4 is yet to be determined in these proceedings. The pertinent observations made in the aforesaid decision relating to Rules 46 and 47 of Delhi School Education Act and Rules 1973, reads as under:-
"Norms such as Rule 46 have been put in place to achieve a larger social objective of ensuring that schools, which are the building blocks of the future of our country, are not closed down on whims and fancies of their founders or promoters. Here, they were not followed. The consequence is that there can be no question of applicability of Rule 47, which presupposes a valid closure of school or a section, or withdrawal of recognition of a school."
Learned counsel for Respondent No. 2 and 3 has not been able to show as to how the impugned order is in consonance with the directions issued by this court in its decision (Annexure P-1), as aforenoted. It would be pertinent to refer Rule 46 of the Delhi School Education Rules, 1973, which reads as under:-
"Closing down of a school or any class in a school - No managing Committee shall close down a recognised school, not being an unaided minority school, or an existing class in such school without giving full justification and without the prior approval of the Director, who shall, before giving such an approval, consult the Advisory Board."
In terms of aforesaid Rule, what was required to be done by Respondent No. 3 in the impugned order was to find out as to whether Respondent No. 4 was justified in shifting the school in question and as to why an approval of shifting of school in question should not be granted. It is pertinent to note that the stipulation imposed by Rule 47 of the Delhi School Education Rules, 1973 to absorb the surplus employees consequent upon closure/shifting of the school is qualified one and not absolute. The aforesaid Rule 47 of Delhi School Education Rules 1973 provides that "as far as practicable" the surplus employees may be absorbed in Government/Aided School as the Administrator may specify and the said absorption would be subject to availability of the vacancy, qualifications etc. Thus, it becomes abundantly clear that there has to be cogent reasons to decline the approval to closure of the school by Respondent No. 4.
It is unfortunate that Respondent No. 3 has failed to follow the directions contained in the decision (Annexure P-1), whereby Respondent No. 3 was called upon to consider grant of ex-post facto sanction for closure of Khalsa Boys Primary School. Impugned order (Annexure P-2) simply refers to Rule 55 of Delhi School Education Rules, 1973 (inadvertently referred to as Section 55 of Delhi School Education Act and Rules 1973) and goes on to state that the recognition as well as the aid to the school of Respondent No. 4 has been withdrawn and so there is no justification or requirement now to seek ex-post facto approval to close down the school. In terms of Rule 46 of the Delhi School Education Rules, 1973, Respondent No. 3 was called upon to find out as to whether there was any valid justification with Respondent No. 4 to close down its school in question and the purpose of obtaining of prior approval of Respondent No. 3 was to consider the feasibility of grant of approval to the closure of school of Respondent No. 4. In view of the consequences, which would flow, as reflected in Rule 47 of Delhi School Education Rules, 1973, the approval was to be accorded or refused, in consultation with the Advisory Board. Impugned order does not reflect that Respondent No. 3 has consulted the Advisory Board.
Since the impugned order (Annexure P-2) is not in consonance with the directions issued by this court vide its decision (Annexure P-1) referred to above, therefore, this court has no hesitation in setting aside the impugned order of 14th February, 2006 (Annexure P-2) Until and unless, there is a valid closure of the school of Respondent in terms of Rule 46 of the Delhi School Education Rules, 1973, the relief of absorption of surplus employees in terms of Rule 47 cannot be granted. (Ashok Kumar's case (Supra) can be referred to with advantage.) The question as to whether Petitioners No.6 to 12 would be entitled to their pensionary benefits from Respondent No. 3 or Respondent No. 4 would be also depending upon the validity of the closure of the school in terms of Rule 46 of the aforesaid Rules.
The Apex Court in the case of "Union of India (UOI) and Anr. Vs. S.B. Vohra and Ors.", reported in AIR 2004 SC 1402, has highlighted the sweep of the writ of mandamus in the following words:-
"The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance."
In view of the aforesaid, a fresh direction is issued to the Director (Education), NDMC, to pass a speaking order within four weeks from the date of receipt of this decision, reflecting as to whether ex-post facto sanction in terms of Rule 46 of Delhi School Education Rules, 1973 can be granted to Delhi Sikh Gurudwara Management Committee to close down Khalsa Boys Primary School, at Bangla Sahib, Ashoka Road, New Delhi, and if not, why?
Since Respondent No. 3 has failed to comply with the directions issued by this court, contained in its decision (Annexure P-1), in its true letter and spirit, therefore, a token costs of Rs.10,000/- is imposed upon Respondent No. 3.
Till the necessary decision is taken by Respondent No.3, Respondent No. 4 would continue to pay the pensionary benefits to Petitioners No.6 to 12 w.e.f. March 2006, till Respondent No. 3 passes a fresh order in terms of this decision. So far as Petitioners No.1 to 5 are concerned, they are entitled to salary etc. only if they work in the school of Respondent No. 4. During the course of arguments, learned senior counsel for Respondent No.4 had pointed out that an option was given to Petitioners No.1 to 5 to work in their school and said option is still available, but Petitioners No.1 to 5 have not chosen to work in the school of Respondent No. 4. Without prejudice to the rights of either side, in case, Petitioners No.1 to 5 choose to work in the school of Respondent No. 4, then they would be entitled to the existing salary, etc., from the date they join the school of Respondent No. 4.
With the directions, as aforesaid, this petition as well as pending application, if any, stands disposed of.
SUNIL GAUR, J July 13, 2009 pkb .P. (C) No. 13044-55/2006 Page 12