Gyan Mandir Society & Anr vs Ashok Kumar & Ors

Gyan Mandir Society and Anr. ...Petitioners

Versus

Ashok Kumar & Ors. ...Respondents

ORDER

T.S. THAKUR, J.

1. In this petition for special leave to appeal the petitioners

call in question the correctness of an order dated 20th July,

2009 passed by a Division Bench of the High Court of Delhi

whereby L.P.A. No.1307 of 2007 filed by the petitioners has

been dismissed with costs assessed at Rs.75,000/- and

directions issued by the learned Single Judge of the High

Court in W.P.(C) No. 11778 of 2006 affirmed. 2

2. The facts giving rise to the filing of the writ petition and

the Letters Patent Appeal have been set out in detail by the

High Court making it unnecessary for us to state them over

again. Suffice it to say that W.P.(C) 11778 of 2006 was filed by

the teachers employed with the petitioner society running a

neighbourhood school at Tis January Lane, New Delhi falling

within the NDMC area. With the allotment of an area

measuring 2.284 acres at Sadiq Nagar in favour of the

petitioner - society the temporary allotment made in favour of

the petitioner's society at Tis January Lane came to an end on

31st of March, 1997. The society was accordingly asked to

hand over the possession of the land but since the school was

catering to the needs of about 500 students and several

teachers had been employed by the society to impart

education to the students, practical difficulties were

encountered in handing over the site. After detailed

deliberations and prolonged correspondence the NDMC offered

to take over the school on "as is where is" basis. A letter to

that effect was issued by the L&DO on 1st April, 2002. The

possession of the school was pursuant to that letter handed 3

over to the L&DO on 8th March, 2006, who on the same day

delivered the possession of the school building to the NDMC.

3. In the meantime the society filed Writ Petition (Civil)

17889-90 of 2005 seeking permission to construct a building

for a senior secondary school at Sadiq Nagar over the site

allotted in its favour. The High Court allowed that writ petition

by its order dated 16th March, 2006. It is note-worthy that in

the said proceedings the society had made a categorical

statement that students studying in the Tis January Lane

school can be accommodated by the society in the school

being run by it at Andrews Ganj on freeship basis and if fees

are charged, the same shall not be in excess of what they were

paying in the Tis January Lane school.

4. W.P.(C) No.11778 of 2006 was at that stage filed by the

teachers employed by the society for its Tis January Lane

school in which they prayed for the following reliefs:-

a) issue a writ in the nature of mandamus to respondent No.1 to cancel the allotment of the Sadiq 4

Nagar site of school measuring 2.34 acres allotted to respondent Nos. 4 & 5 vide dated 27.08.1975;

(b) issue appropriate writ, orders and directions to the respondent No.3 to immediately and forthwith to take over the possession of the said Indian school/site from the respondent Nos. 4 & 5 and to seize all the records of the public school with freezing of the bank accounts of respondent No. 4 & 5;

c) issue appropriate writ, orders or directions to respondent No. 3 to de-recognize the said public school at Sadiq Nagar, New Delhi and to make arrangements for shifting the existing school at Tis January Lane to the Sadiq Nagar site;

(d) issue appropriate orders/directions to respondent No. 3 to ensure the protection of the services of the petitioners and the payment of the arrears of their salaries at the earliest;

(e) issue appropriate writ, order or directions for holding an enquiry under the direct supervision of this Hon'ble Court to fix the responsibilities of the concerned officials of the State whereby the Sadiq Nagar site of the school located at Josip Broz Tito Marg, New Delhi was misused for running a public school in the name and style of "Indian School" on the site allotted for shifting the existing Smt. R.K.K. Gyan Mandir Middle School from Tis January Lane, New Delhi and

(f) issue such other writ, order/orders/directions, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in the light of the above averment and in order to secure the ends of justice 5

for which acts the humble petitioners shall remain grateful to this Hon'ble Court.

5. A Single Bench of the High Court allowed the above writ

petition by its order dated 20th September, 2007 with the

following directions :-

(1) The Respondent Nos. 4 and 5 shall ensure that the Petitioner Nos. 2 to 16 are accommodated appropriately in its unaided school, i.e. Indian School, within four weeks from today; the said teachers shall be absorbed on permanent basis;

their salary, allowances and other conditions shall be preserved with continuity of service. The arrears of 5% contribution for the last one year, payable to the petitioner Nos.2 to 16, shall be paid by the society within 6 weeks, to them. This shall be over and above the Rs.1,00,000/- amount volunteered to be paid by the society, as a good will gesture to them. That amount too shall be paid, if not already paid.

(2) Simultaneously, the said respondents shall take steps to effectuate their statement about assimilating all the existing students (from the aided school in the Tis January Lane) in the Indian school, on "freeship basis". The said students shall not be required to pay any amount over and above what has been paid by them all this while.

(3) The society and fourth respondent shall ensure that the students of the aided school are given free transportation to the unaided school, and back to the Tis January Lane area as long as the students of the aided school study in the 6

Indian school. It shall do all things necessary to meaningfully assimilate such children in the Indian school.

(4) The GNCT shall ensure compliance with the above directions; if necessary, it shall sanction additional sections, wherever required in the unaided school, to accommodate the influx of the students from the aided school as well as teachers and employees from there. It shall continue to preserve and protect the status of the petitioner employees as employees of an aided school.

(5) A status report disclosing due compliance with the above directions, and action taken in that regard shall be filed within 6 weeks, before this court, by the fourth and fifth respondents, and GNCT.

6. Aggrieved by the above order the society preferred Letters

Patent Appeal No.1307 of 2007 which has been as noticed

earlier dismissed by the Division Bench of the High Court by

the order impugned in this petition with costs assessed at

Rs.75,000/-.

7. When the matter came up before this Court on 16th

December, 2009, Mr. Desai, learned senior counsel for the

petitioners made a statement that the petitioner society was 7

prepared to absorb all the students and the teachers employed

for the school at Tis January Lane, New Delhi, from the next

academic year, provided the students and the teachers were

willing to join the petitioners-school. Mr. Sen, learned counsel

appearing for the NDMC was also granted time to seek

instructions as to whether the NDMC was prepared to absorb

the teachers.

8. Pursuant to the above direction, Mr. Sen submitted at

the bar that while the NDMC is willing to accommodate

students, who are not willing to join the Indian School of the

petitioner society it has no legal obligation what so ever to

absorb the teachers who were employed by the petitioner

society for running the school at Tis January Lane. It was

argued that since the teachers had themselves not prayed for

any direction from the High Court for absorption in the service

of NDMC, there was no question of issuing any direction to

that effect especially when the same would go beyond the

prayer made in the writ petition. It was submitted that the

High Court had rightly concluded that the society was obliged 8

not only to adjust the students but also the teachers employed

in connection with the running of the school at Tis January

Lane.

9. There is in our opinion considerable merit in the

submission of Mr. Sen. The High Court has after a careful

consideration of the matter correctly held that the society was

obliged to absorb the teachers and the students from Tis

January Lane. The view taken by the High Court does not

suffer from any error of law or jurisdiction to warrant

interference by this Court in exercise of its powers under

Article 136 of the Constitution. In fairness to Mr. Desai, we

must mention that even he did not pursue the challenge to the

orders passed by the High Court in so far as the same directs

the society to adjust and absorb the students and teachers

from the Tis January Lane school. All that Mr. Desai argued

was that direction No.3 issued by the learned Single Judge

and upheld by the Division Bench of the High Court was

totally beyond the scope of writ petition inasmuch as there

was neither any prayer in the petition regarding grant of free 9

transportation to the students from Tis January Lane nor was

there any legal justification for the issue of any such direction.

He urged that this Court could delete the said direction and

dispose of the present petition.

10. Mr. Sen, learned counsel appearing for the NDMC had no

objection to that course of action. Even otherwise, we are of

the view that the direction regarding free transportation to

students from Tis January Lane to the Indian school does not

have any contractual or other legal basis to support the same.

According to the petitioner society also the school is not

providing any transportation to the students nor is there any

obligation to do so. Be that as may be, whether or not free

transport should be offered to students who may be adjusted

in the Indian school was never the matter in issue before the

High Court or in the writ petition filed by the teachers. The

students were also not parties to the proceedings either

individually or collectively. That being the position, we are of

the view that direction No.3 issued by the learned Single

Judge and affirmed by the High Court needs to be deleted and 10

is accordingly deleted. We may however clarify that this order

would not prevent the students from seeking appropriate

redress in appropriate proceedings before the competent Court

or authority and claiming free transportation to and fro Indian

school established by the petitioner society. In any such

proceedings the prayer regarding transportation shall be

examined uninfluenced by the observations made in this

order. Beyond the modification indicated above we see no

reason what so ever to interfere with the orders passed by the

High Court. The petition is, with the above observations,

disposed of. No costs.

.................................J. (J.M. PANCHAL)

.................................J. (T.S. THAKUR) New Delhi February 16, 2010