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JaIn Education Society and ors. Vs. Lieutenant Governor and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 841 of 1970
Judge
Reported inILR1971Delhi561
ActsDelhi Education Code, 1965
AppellantJaIn Education Society and ors.
RespondentLieutenant Governor and ors.
Advocates: R. Dayal,; B.B. Kishore and; J.P. Gupta, Advs
Cases ReferredJagdish Parshal Babu Ram v. The State of Haryana
Excerpt:
.....had sufficient time to do so. in view of the failure of the petitioner to comply with these conditions subject to which only the provisional recognition had been granted and in view of the damaging statements made by the principal in his letter seeking recognition for the year 1970-71, the recognition of the school could not be extended by the department. shri rameshwar dial learned counsel for the petitioner, in his oral argument raised the further question that the impunged order does not state the reasons for the refusal to extend the recognition of the school and it is, thereforee, bad. the department has sworn an affidavit that these conditions were not fulfillled by the petitioner, though the petitioner very well knew the imposition of these conditions by the letters..........provisional recognition was granted were not fulfillled within the first year or within the second year the recognition would not be extended. (12) in the petition no reference is made to certain complaints by the teachers and others against the management of the school. these complaints are referred to in the opening portions of the counter affidavit by the respondents before the reply on merits to the allegations made in the petition is given by the respondents. it is, thereforee, for the first time in the rejoinder that the petitioner says that the matters referred to in these complaints were never brought to the notice or knowledge of the managing committee and that it was not open to the respondents to rely on them in support of the contentions of the respondents. in our view these.....
Judgment:

V.S. Deshpande, J.

(1) THE. Delhi Administration gives grants- in-aid to higher secondary schools recognized by the Central Board of Secondary Education and to other schools, such as middle schools, recognized by its department of Education. The administrative instructions governing the recognition of middle schools are set out in Chapter Iv of the Delhi Education Code, 1965 (hereinafter called the

(A)Disbursement of salary to the members of the staff be made in time. (b) Departmental rules be followed strictly. and (c) Immediate steps be taken to construct the school building on the plot which the school is having for this purpose and compliance report be submitted by the end of December 1968.

Again on 26-5-1969 the Department extended the provisional recognition of the middle school for a further period of one year from, 1st May 1969 to 30th April 1970 as per Annexure R-1 to the written statement subject to the several conditions, the following of which are material, namely:-

(A)Salary of the staff is disbursed in the first week of every month and a disbursement certificate is sent to this office regularly every month. (b) All departmental rules are strictly observed. and (c) The compliance report may kindly be submitted by the end of December 1969.

(2) No application for the recognition of this middle school for the year 1970-71 was made by the petitioner in the proforma attached to Appendix I of the Code. In this proforma as many as 35 entries had to be filled by the petitioner and a certificate has to be attached as to the readiness of the school to comply with all conditions which may be imposed by the Department while granting recognition. A copy of the resolution passed by the Managing Committee in this behalf has also to be enclosed. The application has to be signed by the President/ Manager/Secretary of the school. The reason is that the Department has to be assured that the grant-in-aid given by it is being properly spent and the school is properly managed. Only a letter was written by the Principal of the School on 12-11-1969 (at Annexure R-7 to the written statement) seeking extension of the recognition. But in this letter, the Principal stated the following damaging facts :-

(A)There is a dispute between the bona fides of the two managing committees and the case is registered in the court. (b) The staff does not get 5 per cent of their salaries and the provident fund on it since December 1968 from any committee, nor is the expenditure for contingencies coming forth. (95 per cent of the salaries of the teachers are paid by the Government and only 5 percent were payable by the petitioner; but even this was not being paid). (c) Investigations have taken place for nearly a year against the management by the Anti-corruption department for the alleged misappropriation of the grants-in-aid given by the Education Department.

The relevant part of the reply given to this letter by the Education Department on 14th April 1970 as per Annexure A to the writ petition was as follows :-

'TO The Principal ......With reference to your letter ..... dated 7/12-11-1969, I am directed to inform you that as the Managing Committee of your school has failed to perform their duty, the extension of recognition of the school beyond 30-4-1970 cannot be granted.'

(3) This order refusing the extension of the recognition of the middle school managed by the petitioner has been assailed in this writ petition principally on the ground that under the Code as also on the general principles of natural justice, the petitioner was entitled to notice and hearing before this impugned order was passed by the Department.

(4) The principal defense by the Delhi Administration is that no formal application for grant of recognition for 1970-71 was submitted by the petitioner at all. It was pointed out that the petitioner has not mentioned in the petition about the proforma in Appendix I of the Code which had to be filled by the petitioner in making the application for recognition. This proforma had to be signed by the Secretary, Manager or President because it involved financial commitments on the part of the management of the school relating to the payment of 5 percent of the salary of the staff and non-recurring grants. Though usually it is not necessary to file the proforma every year, the application form is to be filed by any of the office bearers of the society. But the recognition granted to the petitioner's school was only provisional subject to the fulfillment of the conditions imposed therein. But the petitioner failed to fulfill these conditions during the year 1968-69 and the year 1969-70 though the petitioner had sufficient time to do so. In view of the failure of the petitioner to comply with these conditions subject to which only the provisional recognition had been granted and in view of the damaging statements made by the Principal in his letter seeking recognition for the year 1970-71, the recognition of the school could not be extended by the Department. It was not necessary to give to the petitioner any further opportunity before refusing recognition for 1970-71 in view of the above circumstances.

(5) The only question raised in the pleadings, thereforee, is whether the impugned order should be quashed on the ground that a reasonable opportunity to show cause against the refusal to extend the recognition for 1970-71 was not given to the petitioner. Shri Rameshwar Dial learned counsel for the petitioner, in his oral argument raised the further question that the impunged order does not state the reasons for the refusal to extend the recognition of the school and it is, thereforee, bad.

(6) In considering the first question, it is relevant to note that the opening part of paragraph 46 of the Code requires a reasonable opportunity to be given when recognition is either suspended or withdrawn. The necessity of the opportunity arises from the fact that a suspension or a withdrawal of recognition is something which was not contemn plated before. Since it comes suddently, the school affected by it should be given a hearing. But this basis of the right to a hearing is absent in the present case. In 1968 and 1969 the school of the petitioner was granted provisional recognition subject to the fulfillment of certain conditions apparently under the closing part of para 46 of the Code. The Department has sworn an affidavit that these conditions were not fulfillled by the petitioner, though the petitioner very well knew the imposition of these conditions by the letters granting provisional recognition in 1968 and 1969, the petitioner has deliberately avoided any mention in the petition of the facts that the recognition to the school granted in 1968 and 1969 was only provisional for one year each time subject to the fulfillment of conditions and the further fact that the petitioner had failed to comply with these conditions. Even after the respondents pointed out in the written statement that the petitioner had failed to comply with these conditions, in the rejoinder which was filed by the petitioner, the petitioner again avoided to deny the allegation of the respondents that the petitioner had failed to comply with these conditions. Not a word is said by the petitioner either in the petition or in the rejoinder as to the effect of the grant of recognition provisionally for one year at a time in 1968 and 1969 subject to the fulfillment of certain conditions and of the failure of the petitioner to fulfill these conditions. We take an unfavorable view of the conduct of the petitioner in deliberately suppressing these material facts.

(7) In addition to the non-fulfilment of the conditions subject to which a recognition had been provisionally granted, the very letter of the Principal seeking recognition mentions other damaging facts including the non-payment of 5 per cent of the salary to the teachers. The respondents have again stated on affidavit that the petitioner failed to pay 5 per cent of the salary to the teachers from 1968 up to date. The petitioner was well aware of the letter of the Principal seeking recognition. In fact, the petitioner has referred to this letter in the writ petition and yet the petitioner has deliberately abstained from giving any Explanationn about those damaging facts. This conduct also goes against the petitioner's case.

(8) The petitioner was already aware that the conditions subject to which the provisional recognition had to be granted had not been fulfillled by the petitioner. The petitioner was further aware of the damaging facts stated by the Principal in the letter seeking extension of the recognition for the year 1970-71. The impugned order states that 'with reference to your letter dated 7/12-11-1969. . . . . .as the Managing Committee...... has failed to perform their duty, the extension of recognition. .... beyond 30-4-1970 cannot be granted.' This letter makes it clear that the two sets of facts, namely, (a) non-fulfilment of the conditions, and (b) those stated in the letter seeking recognition such as the dispute between the bona fides of the two managing committees, non-payment of 5 per cent salary to the teachers and the investigation by the Anti-corruption department into the alleged misappropriation of the grant-in-aid etc., were already known to the petitioner. The petitioner was given full opportunity to fulfill the conditions during 1968-69 and 1969-70. If the petitioner did not fulfill them, no question arises of the petitioner being given any further opportunity to fulfill them. Nor can the Department be expected again to ask the petitioner why the conditions were not fulfillled and why the extension of recognition should not be refused. For, as we have stated earlier, the refusal to extend recognition was not going to come as a surprise to the petitioner. The petitioner was already warned that the recognition itself was being provisionally extended subject to conditions. This means that if the conditions were not fulfillled the recognition automatically comes to an end. This is the only meaning one can attach to a provisional recognition subject to fulfillment of conditions. As already stated above, the opening part of paragraph 46 of the Code does not apply to the present situation. It applies only when without such previous warning the recognition is either suspended or withdrawn. In our view, the two warnings in 1968 and 1969 and the fact that recognition was being granted only provisionally subject to conditions were a sufficient opportunity for the petitioner to ensure that the extension of recognition is not refused by thei failure of the petitioner to comply with these conditions.

(9) After all, the rule of natural justice or paragraph 46 of the Code which requires the grant of hearing before adverse action is taken is not a rule of thumb which must be applied unintelligently in every case irrespective of the particular facts of the case. On the other hand, it is well-established that the nature, manner and the quantum of such a hearing would differ according to the particular facts of each case. The grant of hearing does not only take the form of the issue of a show cause notice why some future action should not be taken. In the facts of the present case, the hearing was already granted to the petitioner when the extension of the recognition was already made provisional subject to the fulfillment of conditions in 1968 and 1969. The petitioner knew full well that recognition would not be extended if it goes on refusing to fulfill the conditions. It was not, thereforee, necessary, on the facts of the present case, again to ask the petitioner why the conditions were not fulfillled. Two years' time given to fulfill these conditions was more than sufficient and no further time needed to be given.

(10) The petitioner could not expect the Department to grant further time for fulfillling the conditions particularly in view of what was stated in the letter seeking recognition itself. If 5 per cent of the teachers' salaries were not paid from December 1968 onwards, this fact was well within the knowledge of the petitioner. The petitioner did not explain why the salaries were not paid. The petitioner has avoided such Explanationn even in the petition and the rejoinder in this case. This shows that the petitioner had no Explanationn to give about it. Similarly, the petitioner did not explain why the dispute between the two managing committees and the investigation against the petitioner by the Anticorruption department should not have made the Department reluctant to give any further extension of recognition. We are of the view, thereforee, that in this particular case, the order refusing to extend the recognition was not vitiated by the denial of hearing to the petitioner.

(11) Shri Rameshwar Dial learned counsel for the petitioner, has cited several decisions to show that adverse action should not be taken against a person before he is heard. They are State of Madhya Pradesh v. Thakur Bharat Singh Air 1967 Sc 117, Basheshar Nath v. Commissioner of Income-tax : [1959]35ITR190(SC) , The Board of High School and Intermediate Education, U.P. v. Kumari Chittra Srivastava : [1970]3SCR266 (3), Ridge v. Baldwin, (1964) A C 40 and M/s. Jagdish Parshal Babu Ram v. The State of Haryana, Vol. (1970) PunL R 784. He also contends that before exercising the quasi-judicial function of refusing to extend recognition, the Department was bound to grant hearing to the petitioner. But these decisions do no help the petitioner in any way. For, in the present case the petitioner was already warned that the conditions subject to which provisional recognition was granted were not fulfillled within the first year or within the second year the recognition would not be extended.

(12) In the petition no reference is made to certain complaints by the teachers and others against the management of the school. These complaints are referred to in the opening portions of the counter affidavit by the respondents before the reply on merits to the allegations made in the petition is given by the respondents. It is, thereforee, for the first time in the rejoinder that the petitioner says that the matters referred to in these complaints were never brought to the notice or knowledge of the managing committee and that it was not open to the respondents to rely on them in support of the contentions of the respondents. In our view these complaints are irrelevant in the decision of this case. It is not the case of either party that the respondents refused to continue the recognition of the school of the petitioner because of these complaints. As these complaints did not form the grounds on which the respondents refused to extend the recognition of the school of the petitioner, there was no question of the respondents giving to the petitioner an opportunity to answer the allegations contained in those complaints.

(13) As to the second contention advanced by Shri Rameshwar Dial according the giving of reasons for the refusal to grant the extension to recognition, it is sufficient to mention that these reasons are to forbidden the letter refusing extension by the Department itself. Firstly be in the letter refusing extension by the Department itself. Firstly are found in the letter of the Principal seeking recognition. The daily facts stated by the Principal in the letter seeking recognition where already known to the petitioner and for which no Explanationn forthcoming were themselves part of the reasons. Secondly the refusing grant of extension expressly refers to the Principal's letter says that the Managing Committee of the school had failed to do the duty. The duty can refer only to the fulfillment of the conditions get to which provisional recognition had been granted in 1968 and 1969. These reasons are sufficient to make the impugned order and speaking order. The writ petition is, thereforee, dismissed with costs. Counsel's fee Rs. 200.00


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