1. This petition, under Arts. 226/227 of the Constitution of India, By Gandhi Harijan Ucchatar Madhyamik Vidyalaya, its Principal, and certain others, including the President of its Managing Committee, is directed against certain orders and directions of the Directorate of Education with regard to the management of the School and a notice from the Administrator of the Union Territory of Delhi requiring the Manager of the school to show cause why the management of the school be not taken over under Section 20 of the Delhi School Education Act, 1973 (for short, the Act).
2. According to the petitioners, the school was started in the year 1965 by the Gandhi Harijan Shiksha Sabha, a society registered under the Societies Registration Act, as a Middle School, with the object of imparting 'knowledge of vedic and Arya Samai text as laid down by its founder Maharishi Daya NandJi who had been the Pioneer for the cause of uplift of untouchability in India in Hindu society.' It is claimed that inter alia, on account of the untiring efforts and work of Shri Ranjit Singh, who has been the Principal of the school since its inception, the institution has grown from strength to strength over the years and had become by the year 1975, when the petition was filed, a Higher Secondary School, having on its rolls IJ500 students and a staff of 146 teachers, housed in a building of its own consisting of over 50 rooms in two floors in an area of about 7000 sq. yds. acquired and put up with public help without any assistance from government. It is a co-educational institution and works in two shifts. It is further claimed that throughout this Period the school was considered among the best run schools in Delhi, with excellent results and the management of the school had been the recipient of commendations and appreciation on a number of occasions from the educational authorities. According to the petitioners, since the enforcement of the Act, there has been undue interference in the management and administration of the school by the Directorate of Education, which had its genesis in the jealousies that the successful management and growth of the school by the efforts of the Principal bad generated and, in particular, the machinations of a local social worker, Shri Ram Chander Kardam, who had openly aspired to the membership of the Managing Committee of the school. According to the petitioners, the resistance of the management to the inclusion of Shri Kardarn into the Managing Committee has been the cause of hostility by the Directorate of Education towards the management of the school, which inspired public agitation against the management and, in particular, against the Principal and disaffection amongst a section of the teaching staff, which have since taken an ugly turn because of the support that the elements hostile to the management have been able to enlist on account of the influence of Shri Kardam over the then Chief Executive Councillor, who also held the education portfolio, and the officers of the Directorate of Education. It is further alleged that the hostile attitude of the dissident teachers is partly attributable to the fact that they were acting under the influence of a political party, which during the material period., was sup porting the political party then Mi power in the Union Territory of Delhi and at the Centre. According to the petitioners, the interference with the management of the school and its threatened take over by the Ad ministration is not only mala fide, actuated by political considerations, but is also vocative of the fundamental right of the Society and the School enshrined in Art. 30 of the Constitution of India on the ground that the Society and the school are minority institutions, having been established b y the Arya Samaj, a religious minority, for the benefit of the Scheduled Castes and the other backward classes constituting an economic minority. After the internal emergency was withdrawn the petitioners also sought the protection of Art. 19 of the Constitution of - India in that the threatened take over would militate against the fundamental right of the Society to hold its property. Article 14 was also pressed into service on the ground that the threatened action smacked of hostile discrimination in that it was an arbitrary executive action. The constitutionality of certain provisions of the Act and the Rules framed there under was also brought within the -00 sweep of the challenge.
3. The petition was vehemently opposed on behalf of the Administration and the allegations of mala fides, and the minority character of the institution, inter alia, were denied. During the pendency of the proceedings the dissident members of the staff apparently intensified their agitation against the Principal and in their effort to remove him from the management entered the fray and sought to, be imp leaded as respondents, inter alia, on the ground that they were vitally interested in the proper management of the school and were being victimised by the present management. A large number of teachers were, thereforee, imp leaded as respondents with a view to protect their interests. Gandhi Harijan Sewak Samaj, a society, said to have been registered under the Societies Registration Act, and which staked acclaim to having established the aforesaid school, was also allowed to participate the proceedings at its request. The petition was also opposed by the dissident teachers and the said society.
4. I have heard learned counsel for the parties at great length not only on the various questions in controversy between the parties but also as to the course of events since the inception of the school leading, and the causes that may have contributed to the present state of confrontation between the management of the school and a section of the teaching staff, as indeed, he conflict between he management of the school and the authorities.
5. The principal question that the petitioners raise relates to the character of the society or the school as a minority institution established by the Arya Samaj for the uplift of the Harijans and other backward classes and the consequential Constitutional protection that it claims under Article 30 of the Constitution of India, including the right to manage and conduct its affairs. It is apparently on account of this contention that rule had been issued in the petition, as indeed in a large number of other petitions, involving a similar question. The question was agitated before me but it was agreed that, so far as this Court is concerned, the matter was settled by a Division Bench of this Court by an order of Nov. 17, 1975, in C.W. 334/74 : AIR1976Delhi207 in which this Court, inter alia, ruled that Arya Samaj could not be considered a minority and the institutions established by it would not, thereforee, qualify for the protection under Art 30 of the Constitution of India. The decision is binding on this Court and I am in respectful agreement with the view expressed by the Division Bench. It is true that the question is otherwise rest integra as the matter was taken to the Supreme Court and now forms subject-matter of an appeal. In view however, of the decision of the Division Bench this contention cannot prevail at this stage and must, thereforee, fail.
6. On behalf of the dissident teachers a contention was raised that even if the institutions set up by the Arya Sama were to qualify for the constitutional protection the petitioners could not avail of it in that in the first place, the Society, which is said to have established the school, was not the petitioner and had not claimed any relief and secondly, because the material on record would not support the clam that the Society or the school had ever been established by the Arya Samaj. It was further contended that the mere object to impart education to the members of the Scheduled Caste and backward classes would be insufficient to attract the aforesaid constitutional provision. By C.M. 1538/76 the Gandhi Harijan Shiksha Sabha was sought to be imp leaded as a co-petitioner at the fag-end of the hearing of the petition with a view to tide over the difficulty. There is, however, nothing in the application or in the other material on record which may support the claim that the institution had at any stage been established by the Arya Samaj or any group of persons claiming to believe in is tenets. The constitutional protection would not, thereforee, be available to the institution n any event and the claim to it must fail on that account as well.
7. One of the other contentions, which is based on an equally impressive constitutional edifice, is as to the virus of certain provisions of the Act and the Rules framed there-under. But here again the petitioners were considerably handicapped because of the decision of this Court upholding the constitutional validity of most of these provisions. No attempt was made to assail the provisions other than those which have already been upheld by this Court.
8. Ordinarily, the major premise on which the petition was based having thus virtually disappeared with the pronouncement of this Court on the real questions in controversy. I would have accepted the content of the Administration, as indeed the dissident teachers, to dismiss the petition at an earlier stage of the proceedings leaving the petitioners free to pursue the matter, either in the Supreme Court or before the Administrator, in the course of the proceedings arising out of the impeached notice. However, I desisted from following such a course because of two very weighty reasons. In the first instance, it appeared to me that there was substance in the grievance of the petitioners that, even though the petitioners were under a notice threatening a take over of the management of the school, the petitioners were being denied a reasonable opportunity to inspect the official records relating to the earlier enquiries into somewhat similar allegations which formed basis of the impugned notice and reports of inspection of the school, which allegedly belied the allegations, It was not disputed on behalf of the Administration that there were occasions in the past in, which some of the allegations, said to form the basis of the take over notice, had been enquired into by various inspection teams and/ or enquiry committees and the allegations had either been proved to be false or remained unsubstantiated for want of material. I felt that unless the petitioners were allowed a, reasonable opportunity of inspecting the records it would be a denial of a reasonable opportunity to the petitioner of being heard. Secondly, the petitioners had made serious allegations that the move for the take over of the management of the school was not based on any bona fide administrative necessity or any objective assessment, of the affairs of the school, but was wholly mala fide in so far as it had been engineered by Shri Kardam for purely personal ends, through his political influence on the then Chief Executive Councillor of Delhi, in collusion with the dissident teachers who were acting as instruments of a political party which had, at the relevant time, been supporting the policies of the party then in power in the Union Territory of Delhi and that the decision to take over had virtually been taken and the impugned notice and the inquiry pursuant to it was intended to be a mere eye-wash. That the take over decision was tainted with mala fide was also sought to be supported with reference to the admitted f act that on more than one occasion in the past some of the allegations, which were sought to justify the take over, had been enquired into but the enquiry had proved abortive.
9. During the pendency of the petition the petitioners have been able, on account of the intervention of this Court, to make an exhaustive inspection of the records relating to the previous inspections and enquiries and had the necessary opportunity to make out copies of the relevant records. One of the grievances of the petitioners that they would not be able to effectively place their point of view before the Administrator would seem to have thus disappeared. The petitioners - were, thereforee, willing to submit to an impartial enquiry into the affairs of the school, as indeed, the conduct of dissident teachers. The dissident teachers were also willing to submit to any such enquiry. Counsel for the Administration was, however, unable to persuade the Administration to have either a judicial enquiry or an impartial enquiry by any person who would not be under the influence of the Administration, - particularly the then Chief Executive Councillor.
10. On a perusal of the bulky records of the petition and in the course of hearing of elaborate arguments on behalf of the various parties it prima facie appears that, irrespective of the fact whether the school was established by any society or had a duly constituted managing committee, the management of the school has, by and large, over the years been more or less a one-man affair in that the Principal of the school, who appeared to be both energetic and but also sole builder and benefactor (sic). It has almost been a common case of the parties that he has been managing the affairs of the school almost exclusively including collection of funds, recruitment of teachers and had apparently, because of this concentration of power, become unpopular among a section of the teaching staff, which made him, as indeed the school a subject-matter of not only public controversy but also brought them into conflict with, the educational authorities. Prima facie, it also appeared that the school had, by and large, a smooth course until Shri Kardam started evincing interest in its affairs and almost openly aspired to the membership of its managing committee, either for personal projection or with a view to ensure the participation of local population with the administration of the school. That his desire was blessed and supported by the then Chief Executive Councillor is amply borne out by the records although I could not hazard any opinion as to the reason why he was able to enlist his support. There is considerable force in the contention that the attitude of the Chief Executive Councillor, as indeed of the dissident teachers, may have some political motivation although it is difficult to altogether exclude the possibility that the hostile attitude of the Administration and a section of the staff may have been occasioned either by the concentration of power in the hands of the principal or the use of the unconventional methods adopted by him in the management of the school or perhaps because of the oft repeated allegations of collection of funds without accounts, arbitrary manner of dealing with the staff, lack of control by the managing Committee and the further allegation that contribution for the school was extorted out of the prospective members of the staff and the existing staff was compelled to execute receipts for larger amounts than were paid to them by way of salary, probably with a view to generate sufficient funds to Meet the deficit, which a recognised school was bound to provide.
11. Ordinarily, where mala fides are attributed to executive action and there is material which may justify an investigation this -Court would be inclined, as indeed bound, to go into the matter and, if necessary, even strike down a notice which merely requires the management of a school to show cause against a possible take over. I do not, however, propose to adopt this course or even to comment on what, on the examination so far made of the material, appears to me to be the true position because the extensive inspection of records allowed to the petitioners under the auspices of this Court during the pendency of the petition and the recent political changes and the administrative changes in consequence thereof, to my mind, have made a qualitative difference in the context in which the petitioners had a justifiable apprehension that a fair hearing or an impartial and objective consideration of the question of take over would be denied to the petitioners. Learned counsel for the petitioners made no attempt to conceal his jubilation on the recent political changes and even hinted, on more than one occasion, that as a result of these changes, and the further changes that, he thought, were bound to follow, a withdrawal of the notice was -perhaps around the corner, even though the likelihood of the reversal of the attitude of the Administration, in the matter of take over of the school in larger public interest, was not shared on behalf of the dissident teachers. In view, thereforee, of the fact that the major objection of the petitioners, that they were being prevented from inspecting the relevant official records has almost disappeared and the counsel for the petitioners has had an extensive opportunity to inspect the records and the further fact that, in view of the recent political and administrative changes, it would be possible for the Administration to bring to bear an independent, impartial and fresh thinking on the material on record and the further material that may be placed before the authorities by the petitioners as indeed the teachers and all others who may be interested in the proper management of the school, it is unnecessary for this Court to interfere at this stage, leaving the petitioners free to seek their legal remedies should and adverse order hp made by the Administrator.
12. In a system governed by the Rule of Law every executive action, to be valid must not only conform to the constitutional or statutory constraints but also be bona fide, just and fair. A mala fide executive action has no de jure existence. It is well settled that the State take over of the management of an educational institution, run by an individual or a society is a matter of considerable importance. There are many facets to a take over measure. It divests the individual or the society of the right to manage the institution, which the individual or the society had established, and to that extent, thereforee, interferes with individual or institutional rights. A take over of management may also involve temporary or partial deprivation of the right to hold property and the individual or the institution concerned may, as a result of the take over of the management, be deprived of the possession of the property, that may belong to such an individual or institution. In that sense, thereforee, the take over may attract the fundamental right to hold property, A take over of management would also involve a conflict between individual or institutional interest on the one hand, and public interest, which is sought to be served by the take over, on the other. There is the imperative need to balance the two require. There are various aspects of the propriety of a take over, apart from the constitutional or legal requirements to which such a measure must conform. It is beyond doubt that the affairs of an educational institution must be conducted in accordance with law and the requirements of propriety so as to be conducive to the development of education object that the institution is supposed to serve. While it is not possible to put the conditions which may justify a take over of a management in the strait-jacket of a judicially evolved definition, there could be no doubt that the take over of a management of an institution would, ordinarily, be resorted to where other measures to- deal - with the affairs of an institution complain- of, have failed to achieve the desired result. There are various interests involved in an educational institution. There is the legal right of the management to conduct the affairs of the institution. There are the claims of the staff, the security of their tenure and proper conditions of work. There is the interest of the students, as indeed the overriding requirements of public interest. In any conflict between the management of an educational institution and the dissident staff it is necessary, as well as desirable, to strike a reasonable balance between the requirement of discipline, on the one hand, and the need of a machinery for the redressal of grievance of the staff, on the other, I have absolutely no doubt in My mind that, in considering the various questions that arise in the present proceedings for the take over of the management of the institution, the Administrator would keep all these considerations in view and would bring to bear independent and fresh thinking on the material on record, and the further material that may be placed before him by the various interests and take a decision after giving the management, the teachers and others, who may be interested, a reasonable opportunity of being heard. I have also no doubt in my mind that if the Administrator decides to order an inquiry into the affairs of the institution the inquiry would be, as far as possible, entrusted to an authority, which would in- spire confidence of all the interests concerned, and no person in authority, who had occasion to deal with the matter before, would be associated with the inquiry or the process of decision making.
13. In the result I would dismiss the petition. In the way I have looked at the matters in controversy no further direction will be necessary on the various miscellaneous applications made by the parties from time to time for directions. All these applications are dismissed and the various interim orders and directions made from time to time with regard to the management of the school stand vacated.
14. In the peculiar circumstances, there would be no costs.
15. Petition dismissed.