Gauhati High Court
Sewa Ashram Girls M.E. School vs The Bodoland Territorial Council & 7 Ors on 31 August, 2016
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No. 6341 of 2014
Sewa Ashram Girls' M.E. School,
Village Batabari, P.O. Titaguri, District-Kokrajhar,
represented by its Headmaster/Secretary, Sri Hemanta Ray,
Son of Shri Khajindra Chandra Ray, Village Dimalgaon,
P.O. Titaguri, District-Kokrajhar, Assam
- Petitioner
- Versus -
1. The Bodoland Territorial Council
Represented by its Principal Secretary, Kokrajhar, BTAD.
2. The Secretary (Education), Bodoland Territorial Council,
Kokrajhar, Assam.
3. The Director of Education,
Bodoland Territorial Council, Kokrajhar, Assam.
4. The District Elementary Education Officer,
Kokrajhar, Assam.
5. The State of Assam, represented by the
Commissioner & Secretary to the Govt. of Assam,
Education Department, Dispur, Guwahati-6.
6. The Mission Director, SSA, Assam,
Kahilipara, Guwahati-19.
7. The Deputy Commissioner-cum-Mission Coordinator, SSA,
Kokrajhar, Assam.
8. Gyanodoi Jatiyo Vidyalaya, Batabari,
represented by its President & Secretary,
Village-Batabari, P.O. Titaguri, District-Kokrajhar, Assam.
- Respondents
BEFORE HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the Petitioner : Mr. D.K. Saikia, Advocate.
For Respondent Nos. 1, 2, 3 and 4 : Mr. M. Khataniar, Standing counsel, BTC. For respondent Nos. 5 and 7 : Mr. T.C. Chutia, Government Advocate. For respondent No. 6 : Mr. S. Sarma, Standing counsel, SSA.
For respondent No. 8 : Mr. M.U. Mondal, Advocate.
Dates of hearing : 23.6.2016, 12.7.2016, 28.7.2016 & 17.8.2016.
Date of judgment : 31.08.2016
W P(C ) 6 341 of 20 14
2
JUDGMENT AND ORDER
Heard Mr. D.K. Saikia, learned counsel for the petitioner. Also heard Mr. M. Khataniar, learned standing counsel, Bodoland Territorial Council (BTC), appearing for the respondent Nos. 1 to 4, Mr. T.C. Chutia, learned State counsel, appearing for respondent Nos. 5 and 7, Mr. S. Sarma, learned standing counsel, Sarba Siksha Abhiyan (SSA) Assam, appearing for the respondent No. 6 and Mr. M.U. Mondal, learned counsel appearing for the respondent No. 8.
2. This writ petition is directed against the order dated 21.10.2014 passed by the Secretary, BTC as well as the letter dated 5.11.2014 issued by the District Elementary Education Officer, Kokrajhar, consequent upon issuance of order dated 21.10.2014. By the order dated 21.10.2014, it was directed as follows:
"1. The recognition of the Sewashram Girls' M.E. School is cancelled and further allotment of DISE Code by the SSA, Assam be stopped forthwith. The Director of Education, BTC shall take necessary action accordingly.
2. In order to not to hamper in imparting education to the existing students of the Sewashram Girls' M.E. School, the students of the School be immediately shifted to the nearest provincialised School. The DEEO, Kokrajhar shall do the needful action accordingly.
3. The Land and Land Revenue Department, BTC shall examine the land allotment order issued by the Deputy Commissioner, Kokrajhar vide order No.KRS.44/96/10, dated 09.10.1998 and after verification of land records, shall pass necessary order for allotment of land to the Gyanodoi Jatiyo Vidyalaya in accordance with law."
By the letter dated 05.11.2014, the President/Secretary of the School Managing Committee of the petitioner school was directed to issue transfer certificate to all the existing students of the school to enable them to take admission in the nearest provincialised school, further making it clear that no fresh admission of students should be taken in the school.
3. The case of the writ petitioner, Sewa Ashram Girls' M.E. School, as projected in the writ petition is that the petitioner school was established in the year 1996 at an interior place of Kokrajhar district by the villagers of the locality by contribution generated from the villagers as there was no primary school, particularly for girls. The Secretary, BTC accorded W P(C ) 6 341 of 20 14 3 permission/recognition to the School with effect from 1.1.1997 by an order dated 16.5.1997. Subsequently, the Land Advisory Committee, Kokrajhar, in its meeting held on 22.12.1997, resolved to allot three bighas of land in favour of the petitioner school and accordingly, allotment order dated 9.10.1998 was issued by the Additional Deputy Commissioner (Rev). Subsequent thereto, the Circle Officer, Kokrajhar, handed over possession of the land to the petitioner school vide letter dated 21.10.1998. For the purpose of grant of financial assistance as well as for provincialisation, SSA, Kokrajhar provided District Information System for Education (DISE) Code being Code No. 0502102 to the School during the year 2006-2007. However, detail particulars of the petitioner school were not entered into the DISE system as a result of which the school was deprived of getting financial assistance. A representation was accordingly filed to regularize the DISE Code since 2007 to the District Mission Coordinator, Kokrajhar. The school was also inspected by the competent authority from time to time.
4. The petitioner school approached this Court by filing a writ application, which was registered as WP(C) No. 3840/2013, to regularize the particulars of the school in the DISE and to release financial assistance for the year 2010-2011, 2011-2012 and 2012-2013. By an order dated 1.8.2013 issued by the Mission Director, SSA, DISE Code was granted for the year 2013-2014.
5. While the school was running smoothly, the respondent No. 8, in order to get financial grant, connived with the respondent No. 4, bolstered by political influence, to issue a possession certificate in its favour and consequently, the respondent No. 4 issued a certificate dated 14.05.2013 showing possession of respondent No. 8 over 1 bigha 4 katha 10 lecha of land out of 3 bighas of land belonging to the petitioner and based on the said certificate, on 20.5.2013, at around 7 A.M., some people entered into the petitioner school, threw away the sign board and raised fencing and tried to encroach the land belonging to the petitioner school. In connection with the said incident the President of the Managing Committee of the school lodged an ejahar. A number of representations were filed to the authorities for interference and necessary action. As the petitioner was ousted from part of the land belonging to it and as there was an attempt to provicialise respondent No. 8 school, the petitioner approached this Court by filing another writ petition, registered as WP(C) No. 3856/2013. The said writ petition was disposed of by an order dated 15.7.2013 with the direction to the respondents to dispose of the representations which were noted in the order by this Court, in accordance with law, by enquiring into the matter. However, W P(C ) 6 341 of 20 14 4 as the order was not complied with, the petitioner filed a contempt petition which was numbered as Cont. Case (C) No. 418/2014. A show case notice dated 6.6.2014 was issued to the petitioner by the Director of Education, BTC requiring the petitioner to submit its reply on or before 12.6.2014 for onward submission to the BTC. The petitioner submitted show cause reply on 12.6.2014 denying the allegations levelled against the school. Pursuant to a complaint dated 27.9.2013, lodged by respondent No. 8, a hearing was afforded to the petitioner and the respondent No. 8 which led to passing of the order dated 21.10.2014 and issuance of the subsequent letter dated 5.11.2014.
6. At this stage it will appropriate to reproduce the relevant portion of the show cause notice dated 6.6.2014 and the order dated 21.10.2014:
(A) "6th June, 2014 Sub: Show Cause Sir, With reference to the subject cited above and the letter received from the Secretary, BTC Education Department, I, the undersigned do hereby issue show cause and submit reply point wise failing which the BTC will take step to recommend the de-recognition of the school and cancellation of the allotment of land in the name of the school.
It is seen that the school has obtained permission of the school in 1997 and the school was accorded recognition in 1999.
1. The school has obtained DISE Code from SSA authority in the financial year 2012-13 and 2013-14.
2. The local people in and around Batabari village alleged that the school was closed by the local people as per decision of the public meeting held on 07- 01-2005. Later on the school is re-opened without public support from the villagers in 2011 with the following staff:
a. Sri Hemanta Ray, Headmaster b. Sri Debajit Ray, Asstt. Teacher c. Sri Bhaben Ch. Barman, Asstt. Teacher d. Smt. Gitika Bala Ray, Asstt. Teacher e. Smti. Jaya Rani Ray, Hindi Teacher f. Sri Chakradha Ray, Chowkidar.
W P(C ) 6 341 of 20 14 5
3. The Sevashram Girls ME School was allotted 3(three) bighas of land bearing Dag No. 186/669 but the land is presently not under your possession and the school is functioning on the land where it is not allotted for the school. In view of the above you are hereby asked to submit the clarification and reply.
I. That your school was found closed in 2005 and you have submitted forged documents to obtain financial benefit, provincialisation benefit from the Govt. with malafied intention.
II. Your school was found to be closed and discontinued from 2005 to 2012.
III. You have obtained illegal Financial Assistance from the Govt. of Assam in 2010 to 2011 for which year the school has not received any DISE Code from the competent authority of SSA. The DISE Code was not issued by the SSA as the school was found closed in these years.
IV. At present you have shifted the school from the allotted land without intimating the competent authority.
V. The suppression of fact by you is criminal in nature and liable to punish under relevant Section of "The Right of Children to Free and Compulsory Education Act, 2009."
Your reply must reached on or before 12th June, 2014 for onward submission to the Bodoland Territorial Council."
(B) "ORDER Seen the Public Complaint dated 29.07.2013 in connection with complain against Sewashram Girl's M.E. School, Batabari situated in the district of Kokrajhar in BTAD area. The members of the local public have alleged that the said school is running illegally without having DISE Code to be allotted by SSA, Assam and therefore Sewashram Girl's M.E. School, Batabari should not be provincialised by the Govt. of Assam as well as the school's recognition should be forfeited accordingly.
W P(C ) 6 341 of 20 14 6 A hearing pursuant to the Public Complaint dated 29.07.2013 was conducted on 02.08.2014. Both Sewashram Girl's M.E. School and Gyanodoi Jatiyo Vidyalaya were present in the hearing.
The BTC on receipt of the aforesaid Public Complaint dated 29.07.2013 made a joint verification consisting of (i) The Deputy Secretary, Education department, BTC (ii) the Director of Education, BTC and (iii) the Circle Officer, Kokrajhar Revenue Circle, Kokrajhar vide BTC letter No. BTC/Edn(E).153/2004/Pt.III/105, dated 11.12.2013. The Circle Officer in his report submitted vide Memo No. KRC3/2010, dated 13.02.2014 in this regard stated that Sewashram Girls' M.E. School, Batabari, was established in the year 1996 and obtained permission in the year 1997. The said school was recognized by the Education Department in the year 1999. The School has the DISE Code only for the academic year 2013-2014. The School has been allotted land measuring 3B-0K-0L under Dag No. 166/669 of village Titaguri under Kokrajhar Revenue Circle of Kokrajhar District. This school has also got Financial Assistance in the year 2010-2011.
It may be stated that in the Public Complaint, it has been alleged that Sewashram Girls' M.E. School was closed down by local public in a meeting held on 07.01.2007 as per decision of the School Managing Committee of the said school. It is also alleged therein that the said school was closed down from the year 2005 to the year 2011. In the report submitted from the Circle Officer, Kokrajhar Revenue Circle, Kokrajhar, this fact has been found established as per the public complaint.
The report further reveals that on being closed down of Sewashram Girls' M.E. School, the villagers of Batabari established an another school namely Gyanodoi Jatiyo Vidyalaya on the same plot of land where the Sewashram Girls' M.E. School was earlier established. Although Sewashram Girls' M.E. School was established on 3B-0K-0L of land, around 1B-0K-10Ls of land out of 3B-0K-0L is still under possession of Sewashram Girls' M.E. School after the Gyanodoi Jatiyo Vidyalaya was newly established thereat. At this, the villagers of Batabari have submitted a petition to the competent authority to cancel the land allotment order to the Sewashram Girls' M.E. School since the said school was closed down in the year 2005. On this, the Circle Officer has reported that the land allotted to Sewashram Girls' M.E. W P(C ) 6 341 of 20 14 7 School has been now disputed one and neither of the school authorities from Gyanodoi Jatiyo Vidyalaya nor Sewashram Girls' M.E. School are presently enjoying complete possession over the land in question. Be it stated that the Deputy Commissioner, Kokrajhar vide order No.KRS.44/96/10, dated 09.10.1998 allotted the aforementioned land measuring 3B-0K-0L under Dag No.669 of village Titaguri under Kokajhar Revenue Circle of Kokrajhar District to Batabari Sewashram Girls' M.E. School, Batabari as per Resolution No.7 of Land Advisory Committee, Kokrajhar meeting held on 22.12.1997 which is self explanatory.
In this context, the report of the DEEO, Kokrajhar submitted vide letter Memo No.DO/DEEO/Kok/Comp/2/2013/3377, dated- 05.10.2013 to the Director of Education, BTC would be relevant to produce herein. As per report, it is an undisputed fact that Sewashram Girls' M.E. School has two DISE Codes respectively issued in the years 2006-2007 and 2013-2014 by the SSA authority in Govt. of Assam. The DEEO reported that a writ application being numbered and registered as WP(C) No.3856/2013, Sewashram Girls' M.E. School Vs. The State of Assam & Ors. was filed before the Hon'ble Gauhati High Court in connection with the disputed land and the Hon'ble High Court vide Judgment & Order dated- 15.07.2013 pleased to dispose of the case with a direction to the Superintendent of Police, Kokrajhar, Hon'ble Executive Member, Land and Land Revenue, BTC and Assistant Settlement Officer, Kokrajhar to enquire into the matter and then pass appropriate order in accordance with law.
It is also a fact that while the Headmaster of Sewashram Girls' M.E. School was show caused for the entire matter by the Director of Education, BTC, he also admitted that the School has got only two DISE Codes viz. - the year 2006-2007 and 2013-2014 respectively. Regarding the DISE Codes for the closed down period of the Sewashram Girls' M.E. School i.e. w.e.f. 2007-2008 to 2012-2013, the Headmaster has not disclosed anything in the Show Cause Reply. The Headmaster asserted that the school is running continuously since the date of its establishment i.e. w.e.f. 01.01.1996 as on date. In this context, he relied on two nos. of document in order to establish his claim that the School is running continuously as on date from its inception. On examining two documents, it is found that one document W P(C ) 6 341 of 20 14 8 pertains to the report of the DEEO, Kokrajhar submitted vide letter Memo No.DO/DEEO/Kok/Comp/2/2013/3377, dated- 05.10.2013 to the Director of Education, BTC in connection with the Public Complaint dated- 29.07.2013 as already mentioned in the foregoing paragraph and the other is the DISE Code Order issued by the SSA, Assam vide No.SSA/Estt./Court Case/305/2013/3985, dated- 0.08.2013 to the Sewashram Girls' M.E. School for the year 2013-2014 in compliance of the Hon'ble Gauhati High Court's Order dated- 16.07.2013 passed in WP(C) No.3840/2013, Sewashram Girls' M.E. School Vs. The State of Assam & Ors. which is also discussed in the foregoing paragraph. As per materials available on record, it is not discernable whether and why the said School did not make any attempt to obtain the DISE Codes for the closed down period i.e. w.e.f. 2007-2008 to 2012-2013 if the School was running continuously as contended by the Headmaster. No supporting documents in this regard are produced by the Headmaster of the School.
Before parting with the records, it is interesting to note down here that although the Sewashram Girls' M.E. School was remain closed w.e.f. 2005 to 2011, but, the School managed to receive financial assistance in the year 2010-2011 the fact of which was never brought to the notice of BTC. Had the School been closed w.e.f. 2005 to 2011 and in absence of DISE Code for the year 2010-2011, financial assistance to the School for the year 2010-2011 would certainly not have arisen then. This fact clearly contradicts the existing Govt. Rules and law relevant thereto. The School not having DISE Code should not be eligible to obtain financial assistance from the Govt. of Assam.
Considering the matter in its entirety and in the interest of justice, the followings are ordered accordingly -
1. The recognition of the Sewashram Girls' M.E. School is cancelled and further allotment of DISE Code by the SSA, Assam be stopped forthwith. The Director of Education, BTC shall take necessary action accordingly.
2. In order to not to hamper in imparting education to the existing students of the Sewashram Girls' M.E. School, the students of the School be immediately shifted to the nearest provincialised School. The DEEO, Kokrajhar shall do the needful action accordingly.
W P(C ) 6 341 of 20 14 9
3. The Land and Land Revenue Department, BTC shall examine the land allotment order issued by the Deputy Commissioner, Kokrajhar vide order No.KRS.44/96/10, dated 09.10.1998 and after verification of land records, shall pass necessary order for allotment of land to the Gyanodoi Jatiyo Vidyalaya in accordance with law.
This is issued in tune with the judgment & order dated 29.09.2013. Informed all concerned."
7. An affidavit-in-opposition was filed on behalf of the respondent Nos.1 to 4. No comments were offered with regard to the statements made by the petitioner up to paragraphs 16 of the writ petition. In the said affidavit, stand taken was that a public complaint dated 29.07.2013 was received against petitioner school to the effect that the school was running illegally without proper DISE Code allotted by SSA, that the school was ineligible for provincialisation and that immediate cancellation of the recognition was warranted. Thereafter, by providing opportunity of hearing to the petitioner and the respondent No.8, the order dated 21.10.2014 was passed and letter dated 05.11.2014 was issued.
8. An affidavit-in-opposition was filed by the respondent No.7 in which it is admitted that Land Advisory Committee had allotted 3 bighas of land in favour of the petitioner school and possession was also accordingly delivered. It is also pleaded that it had received a representation from the petitioner school requesting not to transfer the allotted land of the petitioner school to any other school. However, since land is a transferred subject and dealt with by BTC, the representation was forwarded to BTC.
9. The writ petitioner filed an additional affidavit. The petitioner brought on record a letter dated 25.11.2014 issued by the Secretary of BTC, wherein, it was recorded that the land allotted to the petitioner cannot be allotted to any other organization. The petitioner in the additional affidavit also annexed documents showing proceedings of General Body as well as of the Managing Committee.
10. An affidavit was filed by the respondent No.8 stating that the petitioner school was closed down on 07.01.2005 by resolution No.1 dated 07.01.2005 as revealed by the verification report dated 13.02.2014 and that the writ petitioner school was closed for the period 2005 to 2010. The respondent No.8 school was established as a private school in the year 2008.. It is pleaded that possession certificate was rightly issued in favour of the W P(C ) 6 341 of 20 14 10 respondent No. 8 and respondent No. 8 is still in possession of the land. The question of possession is a civil dispute and therefore, the writ petition is not maintainable.
11. The petitioner filed a reply affidavit to the affidavit of the respondent No.8. It is pleaded that the so-called meeting held on 07.01.2015 was organized by persons with vested interest and the President of the Managing Committee, who was not even invited to the said meeting, was recorded to be absent and in his place one Badal Ch. Barman, who is the Gaonbura of Batabari Village presided over the meeting. It is further stated that the Verification Report dated 13.02.2014, which was submitted at the behest of respondent No.8, reflects contradictory findings based on the alleged minutes dated 07.01.2005. It is stated that if the Sewashram Girls' M.E. School had been closed down on 07.01.2005 and again re-opened in 2011, as alleged by the respondent No.8, the school could not have DISE Code for the year 2006-2007. That apart, the respondent school, which admittedly has no land of its own, cannot be granted DISE Code in terms of the norms laid down under O.M. No.PMA-397/2011/26 dated 14.11.2011. It is also pleaded that, admittedly, the respondent school has no title over the land in question and illegal forceful possession of a plot of land does not create any right in favour of respondent No. 8 to get DISE Code, etc. from the competent authority. That apart, as the dispute over title and possession had already been decided by the competent Revenue Authority, the plea of civil dispute is of no merit.
12. Two affidavits were filed by the respondent No.6: One on 23.02.2016 and the other on 02.06.2016 pursuant to a direction of this Court. It is stated that record of the petitioner school is available in the DISE Code for the year 2006 to 2007. The DISE Code was also allotted in compliance of the order of this Court in WP(C) No.3840/2013 for the year 2013-2014 and that record of the petitioner school is not available for any other year in the DISE data base. For the year 2007-2008, DISE Code was given showing the status of the school under non-functional/closed category.
13. Mr. D.K. Saikia, learned counsel for the petitioner has submitted that the impugned order dated 21.10.2014 was passed wholly on irrelevant and extraneous consideration in order to promote and subserve the interest of respondent No. 8 which had forcefully occupied part of the land belonging to the petitioner school. The complaint based on which the hearing was taken is engineered by the respondent No. 8 as no complainant was heard but hearing was afforded to the respondent No. 8. It is submitted by him that the alleged public meeting dated 7.1.2005 was never held and even if the same was held, it is W P(C ) 6 341 of 20 14 11 apparent from the vernacular version of the resolution enclosed with the affidavit of the respondent No. 8 that a momentous decision such as closure of the school was taken in absence of the President of the Managing Committee and therefore, such a resolution, even otherwise, cannot have any legal sanctity. He asserts that school was continuing to run all throughout since the day of getting recognition and by the impugned order, most arbitrarily, a school catering to girl students had been directed to be closed down by cancelling the recognition granted. The entire case projected against the petitioner falls flat in as much as if the school was closed in the year 2005, the petitioner school would not have been allotted DISE Code for the year 2006-2007. Merely because the DISE Code was not allotted to the school in the subsequent years does not mean that school was closed and not functioning. Only on the basis of the so called resolution dated 7.1.2005, conclusions have been drawn that the school having been closed in the year 2005, it again started functioning from the year 2011.
14. Mr. M.U. Mondal, learned counsel for the respondent No. 8 has submitted that respondent No. 8 is a private school which was established in the year 2008. Learned Counsel submits that possession certificate was rightly issued in favour of the respondent No. 8 and dispute raised by the petitioner is a civil dispute and, therefore, this Court may not entertain the writ petition. The writ petitioner school does not have the requisite infrastructure under the provisions of Right of Children to Free and Compulsory Education Act, 2009 and the Assam Right of Children to Free and Compulsory Education Rules, 2011 and therefore, the impugned order was rightly passed. He has also submitted that absence of DISE Code after 2006-2007 and the report dated 13.2.2014 (Annexure-4 to the affidavit-in-opposition of the respondent No. 8) lend credence to the assertion that the petitioner school was closed after 2005. Accordingly, he submits that no interference is called for in this writ petition.
15. Mr. Khataniar, learned standing counsel, BTC, for the reasons assigned in the impugned order dated 21.10.2014, also urges that the writ petition is devoid of any merit and as such same may be dismissed.
16. Mr. S. Sarma, learned standing counsel, SSA has submitted that after 2007-2008, no DISE Code was given to the petitioner school till 2013-2014. Thereafter, pursuant to order of this Court, an enquiry was conducted and based on the enquiry report, DISE Code was allotted to the petitioner school for the year 2013-2014.
W P(C ) 6 341 of 20 14 12
17. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
18. The materials on record clearly establish that the petitioner school was allotted 3 bighas of land on the recommendation of the Land Advisory Committee way back in the year 1998. Order dated 25.11.2014 passed by the Secretary, BTC which is annexed with the affidavit-in-reply filed by the petitioner to the affidavit-in-opposition filed by the respondent No. 8 goes to show that order issued by the Deputy Commissioner allotting land in favour of the petitioner still stands. Said order also goes to show that the respondent No. 8 prayed for allotment of land measuring 1 bigha 4 katha 10 lecha vide petition dated 20.5.2013 out of the very same land which was allotted to the petitioner. The prayer of the respondent No. 8 was rejected as the land was already allotted in favour of the petitioner and the respondent No. 8 was left at liberty to pray for allotment of alternative plot of land. Respondent No. 8 is a private school and in the affidavit it has not been explained where the school was established in year 2008. It appears that a possession certificate was issued by Assistant Settlement Officer in respect of 1 katha 4 lecha land which was part of the land allotted to the petitioner. On what basis said certificate was issued is not explained by the respondents including by respondent No. 8. Rather, the picture that has emerged is that armed with that certificate dated 14.5.2013, some people encroached the land of the petitioner school. A certificate of possession issued by an Assistant Settlement Officer does not create any legal right. Materials on record suggest that there is forcible occupation by respondent No. 8 of the land allotted to the writ petitioner. Having regard to the issues involved in the writ petition, I do not find any merit in the contention advanced by Mr. Mondal that the writ petition is liable to be dismissed because it raises disputed questions of fact.
16. The petitioner school also obtained permission from the BTC authorities in the year 1997. At the time of allotment of DISE Code for the year 2013/2014, in the order dated 1.8.2003, it is recorded by the Mission Director, SSA that the school was physically verified by an officer deputed who had submitted his report. It is also recorded therein that the school was running with 43 numbers of girls and the school has five numbers of teaching staff. The school received financial assistance in the year 2010-2011 and the school building is very good having facilities of drinking water, toilets and playground, etc.
19. The report dated 13.2.2014 indicates that the school was allowed to re-open in 2011 by the Department without proper verification. It also recorded that respondent No. 8 W P(C ) 6 341 of 20 14 13 school is also running, on plot of land out of 3 bighas of land allotted to the petitioner. It also opined that the petitioner school be allowed to shift to other place, if agreed to by the teachers and staff and all concerned. However, there is no reference to any order by which the Department allowed the school to be re-opened. It appears that conclusions with regard to closure of the school and subsequent re-opening had been drawn based on the views of some members of public. It clearly appears that there are two factions amongst the public.
20. The show cause notice dated 6.6.2014, amongst others, had alleged that the petitioner had shifted the school from the allotted land without intimating the competent authority. The same was denied by the petitioner. The report dated 13.2.2014 belies the aforesaid allegation as it recommended shifting of the school, which necessarily pre- supposes that the school was functioning from the allotted land.
21. There is no material to conclusively hold that the petitioner school remained closed from 2005 to 2011. The meeting dated 7.1.2005, which forms the basis of the plea set up that the school was closed, was not a managing committee meeting of the school as noted in the complaint dated 29.7.2013. The said meeting dated 7.1.2005 was not even presided over by the President of the Managing Committee. The BTC authority did not examine the school records to find out as to whether there were students and teachers at the relevant point of time before coming to a conclusion that the petitioner school was not functioning and was closed and thereafter, again re-started. Although the resolution dated 7.1.2005 had resolved that transfer certificates would be issued to the existing students, no material is placed by the authorities that in fact transfer certificates were issued to the students, who were admittedly studying at the relevant point of time. The petitioner in the writ petition has also placed minutes of General Meetings as well as Managing Committee meetings of the school from 21.8.2005 onwards.
22. True, there is no clear explanation from the side of the writ petitioner as to why the petitioner did not have DISE Code after 2006-2007. In the show cause reply dated 12.6.2014 submitted in response to the show notice dated 6.6.2014 also, there was no clear response though allegation was leveled that DISE Code was not issued by SSA as the school was found closed during the period from 2005 to 2012. However, it is to be noted that the petitioner did have DISE Code for the year 2006-2007.
23. It is manifest that as on date the school is functioning and is catering exclusively to girl students in Middle English level. The order dated 21.10.2014 does not explain as to W P(C ) 6 341 of 20 14 14 how DISE Code was given for the year 2006-2007 if the school had been closed from 2005. It is not the case of BTC that DISE Code was obtained for the year 2006-2007 from the SSA by fraudulent means. The same is also not the stand of SSA who is entrusted with the obligation of allotting DISE Code. Nothing has been brought on record by BTC authority that on failure to have DISE Code, recognition of the school is to be cancelled. Absence of DISE Code also does not necessarily lead to the conclusion that school was closed. Even if it is assumed that for some period of time, the school was not functioning properly, it is clear from the order dated 1.8.2013 of the Mission Director, SSA that school building of the petitioner and other infrastructure is very good. There are five numbers of teaching staff with enrolment of 43 girls. These are relevant considerations which have been omitted to be taken into consideration while passing the impugned order.
24. In absence of any clinching material to hold that the school was really closed from 2005 to 2011, I am of the considered opinion that the cancellation of recognition of the school and other directions as contained in the order dated 21.10.2014 is not sustainable in law and therefore, the impugned order is set aside. Consequently, the letter 25.11.2014 is also set aside.
25. The writ petition is allowed. No cost.
JUDGE M. Sharma/ RK W P(C ) 6 341 of 20 14