W.P.(C) Nos.4426-32/2006 & 555/2007 Page 1 of 28 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 27.08.2008 % Judgment delivered on: 01.07.2009 + 1. W.P.(C) 4426-32/2006 MRS. ANJALI SOOD & ORS. ..... Petitioners Through: Mr. K.K. Sharma, Advocate versus DIRECTOR OF EDUCATION & ORS. ..... Respondents Through: Mr. Vikas Verma, Advocate for respondent No.1 Ms. Jyoti Singh and Mr. Ankur Chibber, Advocate for respondent No.2 Mr. S.K. Shukla, Advocate for respondent No.3 AND 2. W.P.(C) 555/2007 MANAGING COMMITTEE, NATOINAL PUBLIC SCHOOL ..... Petitioner Through: Ms. Jyoti Singh and Mr. Ankur Chibber, Advocate versus DIRECTOR OF EDUCATION & ORS. ..... Respondents Through: Mr. Vikas Verma, Advocate for respondent No.1 CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes W.P.(C) Nos.4426-32/2006 & 555/2007 Page 2 of 28 VIPIN SANGHI, J. 1. By this judgment I purpose to dispose of writ petition WP(C) No. 4426-32/2006 along with writ petition WP(C) No. 555/07. WP(C) No. 4426-32/2006 had originally been filed by seven petitioners to seek the quashing of the notice of retrenchment dated 30.12.2005 issued by the Management Committee, National Public School, Bela Road as being contrary to the provisions of Delhi School Education Act (the Act) and Rule 46 of Delhi School Education Rules (the Rules) and for issuance of a writ of mandamus directing the management of National Public School (NPS) to absorb the petitioners in any of the other two schools run by it, viz. NPS, Darya Ganj or NPS Kalindi vide order dated 11.12.2006 petitioner No.5 was deleted from the array of petitioners. 2. On the other hand WP (C) No. 555/2007 has been filed by the Managing Committee, National Public School, Bela Road for issuance of writ of certiorari to seek the quashing of the direction given by Delhi School Advisory Board in its meeting held on 27.09.2006 to the management of National Public School, Bela Road to absorb the retrenched teachers in its other branches as aforesaid, before the permission for closure of school is granted. 3. National Public School [Respondent No.3 in WP(C) No.4426- 32/2006 and WP (C) No.555/2007] is an educational society registered under the Societies Regulation Act and was running three unaided schools in Delhi as aforesaid. All these three schools were run (and W.P.(C) Nos.4426-32/2006 & 555/2007 Page 3 of 28 two of them even now continue to be run) under the name and style of National Public School. The petitioners in W.P.(C) No.4426-32/06 are all teachers who were working in National Public School situated at 7, Bela Road (in short “the school”). The school was being run from a rented premise. It appears that in 2001 the landlord of the premises filed a suit for possession, which was decreed in his favour. Against this order the school preferred an appeal. It is claimed by the Managing Committee of N.P.S. that as the Court was not inclined to interfere with the decree, the school opted for an out of court settlement with the landlord and in terms of the settlement the school handed over the possession of the premises of Bela Road School to the landlord on 29.04.2006. Consequent to this, Managing Committee of N.P.S. Bela Road in its meeting held on 30.11.2005 took a decision to close the school due to financial crisis and non-availability of land/building. Thereafter, the school retrenched its employee teachers from service w.e.f 31.03.2006 vide letter dated 30.12.2005. Managing committee of N.P.S., Bela Road vide its resolution passed in its meeting held on 21.01.06 proposed to approach its sister organization to accommodate the employees who were being retrenched, against any suitable future vacancies, as and when they arise. The students on roll of the N.P.S., Bela Road were given an option to get admission either in N.P.S. Darya Ganj or N.P.S. Kalindi. 4. The school sought the permission of the Directorate of Education (DOE) to close down the school at Bela Road. On 22.03.2006 the DOE W.P.(C) Nos.4426-32/2006 & 555/2007 Page 4 of 28 passed an order under Rule 46 of the Rules granting conditional approval to the closure of the N.P.S. Bela Road subject to the following conditions: “1. All the employees & students of the school will be adjusted in National Public School, Dariyaganj & National Public School, Kalindi, Delhi as decided by the Managing Committee of National Public School, 7 Bela Road, Delhi in its meeting held on 21.01.2006. 2. The school authorities shall issue letters of adjustment to the individual employee & a copy of the same duly acknowledged by the concerned employee shall be submitted to the department. 3. The closure of the school will also be subject to the approval of the Advisory Board as provided in rule 46 of DSEA&R 1973.” 5. Aggrieved by their retrenchment, the teachers of the school have filed the writ petitions being WP (C) Nos.4426-32/06 on 20.03.2006. On 19.05.2006, this Court in WP(C) No.4426-32/2006, after taking note of the order issued by DOE on 22.03.2006, issued directions to the DOE Government of NCT of Delhi to ensure that the Advisory Board which is constituted for the purpose of considering the closure of NPS Bela Road, considers and issues its order on the question of approval of the school’s closure, within a period of six weeks. The court also passed an interim order for the payment of all the salary and allowances payable to the petitioners till the next date of hearing. This order has continued to remain in force. W.P.(C) Nos.4426-32/2006 & 555/2007 Page 5 of 28 6. Delhi School Education Advisory Board held its meeting on 27.09.06 and decided that the management of the school must absorb the remaining teachers in its other branches and permission to close down the Bela Road Branch may be given only after the management fulfills this condition. This report of Advisory Committee has been challenged by the management committee of the school in WP(C) No.555/2007. By order dated 23.01.2007 this Court in WP(C) No.555/07 has stayed the operation of the impugned direction dated 27.09.06. 7. On 23.02.07 the Managing Committee of N.P.S. Bela Road filed C.M. No. 2941/07 in WP (C) No. 4426/06 for vacation of the interim orders dated 19.05.06 and 6.07.06 whereby the school was directed to pay salaries to the petitioners. This C.M was heard on 26.07.07. This Court asked the DoE to report about the feasibility of absorption of the petitioners in the other two schools being run by the same management. However, the interim order was to be continued till next date of hearing. 8. By order dated 14.07.2008, the aforesaid two petitions were directed to be heard together. 9. The petitioner Management Committee of the N.P.S., Bela Road submits that it being a private unaided institute is not bound by the decision of the Advisory Board, as under Rule 47 of the Rules direction for absorption of surplus employees can only be given in case where the closure is of an aided school, or withdrawal of recognition is in respect of an aided school. It is submitted that though the three W.P.(C) Nos.4426-32/2006 & 555/2007 Page 6 of 28 schools i.e. the school at Bela Road, Darya Ganj and Kalindi were set up by same Managing Society, but each of them is an independent school having its own Management Committee. Under the Act there is a clear distinction drawn between the society, which establishes the school and Managing Committee which runs the school. Managing Committee is empowered to run the school, supervise, control, and finance the services of the employee in the respective school besides having disciplinary powers and control over the employees and students of the particular school. Reference is made to Rule 59 read with Rule 98 to bring home the point that it is within the exclusive domain of the Managing Committee of the school to either run the school or to close it down. It is submitted that due to a Court decree, the rented premises where the Bela Road school was being run had to be vacated and no alternative site was available for running the school. The school also had been incurring heavy losses for the last more than 2 years and there was no improvement in the financial condition and, therefore, it was not possible to run the school any further. Therefore, the Managing Committee of the School took a policy decision to close down the school due to financial crisis as well as non availability of land, which was even conveyed to the Deputy Director of Education vide letters dated 30.11.05 and 22.12.05. It is argued that closure of an establishment is a managerial right and no direction can be sought from any Court or forum to the management to continue to run the establishment even if it is unable to do so for bonafide reasons or financial crisis. W.P.(C) Nos.4426-32/2006 & 555/2007 Page 7 of 28 10. Management Committee of the school further submits that it has made its best effort to adjust the retrenched teachers in its sister concern schools. In its resolution dated 21.02.06 it was decided that it would give preference to the teachers of its closing school in case vacancies arise in other schools. Even five teachers have been adjusted in other two schools on availability of vacancies. Moreover, it is argued that the appointment of these petitioners-teachers was not in pursuance of any statutory rules/regulations but, under a contract of employment and hence, it being totally private in nature, services could be terminated in terms of contract of employment. A fortiori no writ would lie to enforce a private right. 11. The retrenched teachers of the school i.e Respondents No. 4 to 9 in W.P.(C) No.555/2007 [Petitioners in WP (C) No.4426-32/2006] in their counter affidavit dispute that the NPS , Bela Road is an independent school. It is submitted that schools at Bela Road, Darya Ganj and Kalindi are three different branches of a same school. This is evident from the fact that the petitioner school, till the year 2005, was maintaining a joint seniority list of the staff members of the three schools and even inter-school transfers were being made. 12. It is submitted that after establishing the 3rd school at Kalindi, the Management Committee, Bela Road has been transferring the teaching and non-teaching staff from its Bela Road school to its Kalindi branch. The petitioners in para 25 of the petition have given the details of the inter-school transfer done from 01.06.2000 to 30.08.2004. This fact is W.P.(C) Nos.4426-32/2006 & 555/2007 Page 8 of 28 not disputed by the Management Committee. In fact, it is admitted in para 24 of their counter affidavit filed in W.P.(C) No.4426-32/2006 that employees were transferred from one school to another as per availability of post and vacancy. 13. It is submitted by the respondent teachers that Rule 46 of the Rules casts a mandatory duty on the managing committee of every recognized school (other than an unaided minority school) to take prior permission of the DOE before closing down a school. The main intention behind the aforesaid provision is to see that the interests of the teachers/employees/students are not adversely affected in case of closure of a particular school and to prevent a whimsical action of the management of a school to close down the school which serves the neighbouring community of students. In keeping with this aim the DOE/Advisory Board while giving permission to close a school has the authority and power to impose such incidental conditions that, in its view, will protect and further the interests of the employees and students of the closed school. Accordingly, it is submitted that Advisory Board keeping in view the welfare and interest of the respondent teachers and the students, has rightly imposed the impugned conditions. 14. It is further submitted that despite the vacancies existing in NPS Darya Ganj and NPS Kalindi, the petitioner Managing Committee has not made an effort to absorb the retrenched petitioner teachers. W.P.(C) Nos.4426-32/2006 & 555/2007 Page 9 of 28 15. Respondent teachers refute the policy decision of the management committee to close down the school due to financial crisis by arguing that the NPS, Bela Road is not a separate and independent school. The other two branches of the school are fully functional and have a huge turnover which can meet the expenses of the closed school. 16. Management committee of NPS, Bela Road has placed reliance on T.M.A. Pai Foundation & Ors. V. State of Karnatka & Ors. (2002) 8 SCC 481 and Kathuria Public School and Ors. V. Director of Education and Anr. 2005 VI AD ( DELHI) 893 to contend that any restriction requiring approval of the government in the management policies of the private unaided school is not permissible as it amounts to erosion of autonomy and interference in the functioning of school. Whereas, the respondent teachers have sought to put reliance on Vaishali International School Teachers Welfare Association V. All India Siddhart Int. Educational society & Ors. 132 (2006) DLT 237 (DB) and decision of this Court in Management Of Greenfields Public School V. Govt. Of NCT of Delhi and Anr. WP(C) No.856-857/2006 decided on 01.08.2008 to advance their case. 17. The petitioners have placed on record their letters of appointment. The dates of issuance of these letters are as follows: Mrs. Aruna Gupta 16.08.1974 Smt. Sheela Bannerjee 25.11.1982 W.P.(C) Nos.4426-32/2006 & 555/2007 Page 10 of 28 Sh. G.C. Garg 13.07.1984 Ms. Shobha Rani Jain 18.07.1986 Ms. Rashmi Chaudhary 23.09.1989 Ms. Meena Saxena 28.09.1989 18. It is seen that the letters of appointment of Mrs. Aruna Gupta, Mrs. Sheela Banerjee and Mr. G.C. Garg were issued by the Managing Society, National Public School, Delhi. It appears that at the relevant time it was only the Bela Road School which was running. The appointment letters of Ms. Shobha Rani Jain, Mrs. Rashmi Chandna, Mrs. Meena Saxena were issued on a printed format by the Managing Committee, National Public School, Bela Raod and signed by the Manager. Pertinently, the appointment letters issued to Ms. Shobha Rani Jain, Mrs. Rashmi Chandna and Mrs. Meena Saxena contained, inter alia, the following condition: “that your services may be transferred to any other school under the management Managing Society National School without any extra allowance or enhancement in your salary.” 19. From the aforesaid it appears that when different branches of its schools came into existence the Managing Society, which was the employer, prescribed a condition that the services of the employees may be transferred to any other school under the management of the same society. This clearly shows that the managing society NPS did not intend to create water tight compartments of the employees working in different branches and the employees could be transferred W.P.(C) Nos.4426-32/2006 & 555/2007 Page 11 of 28 from one branch / school to another. The petitioners/teachers have also placed on record the combined seniority list circulated by the Managing Society, National School on 19.02.2002 in respect of the employees working in the schools run by the Managing Society. This seniority list was circulated to the Principal/ Head Mistress, National Public School, Bela Road / Kalindi / Darya Ganj. It contains the names of the various PGT, TGT and Assistant Teachers apart from librarians etc. No doubt, the seniority list in respect of the three schools were sought to be later on drawn school-wise. That, however, does not detract from the fact that at the time of their appointments, the six petitioners aforesaid were considered as employees of the society which has set up the three schools and their services were transferable. Office order dated 22.09.2003 has also been placed on record in respect of the petitioner no. 1 Mrs. Anjali Sood whereby she was transferred to National Public School, Kalindi, New Delhi w.e.f. 01.08.2003 from National Public School, Bela Road, Delhi, where she was serving earlier. 20. The Act was enacted to provide for better organization and development of school education in Delhi and for matters connected therewith. The establishment of a new school and the opening of higher classes or the closing down of an existing class in any existing school in Delhi has been made subject to the provisions of the Act and the rules framed thereunder (see Section 3). Section 4 empowers the appropriate authority to recognize any private school. W.P.(C) Nos.4426-32/2006 & 555/2007 Page 12 of 28 21. The Delhi School Education Rules were framed under the Act in 1974. Rules 44, 46 and 47 are relevant for the present case. They read as follows: Rule 44. Notices of intention to open a new school- (1) With a view to enabling the Administrator to arrange for the planned development of school education in Delhi, every individual, association of individuals, society or trust, desiring to establish a new school, not being a minority school, shall before establishing such new school, give an intimation in writing to the Administrator of his or their intention to establish such school. (2) The intention, referred to in sub-rule (1) shall contain the following particulars namely: (a) the Zone in which the new school in proposed to be established, and the approximate number of students likely to be educated in such schools; (b) the stage of education intended to be imparted in the new school; (c) the number of schools of the intended stage in existence in the Zone where the new school is proposed to be established and the population of a Zone; (d) whether the person proposing to establish the new school have any alternative Zone in view and if so, the particulars of such alternative Zone with respect to the matters specified in clauses (a) and (c); (e)the particulars including measurements of the building or other structure in which the school is proposed to be run; (f) the financial resources from which the expenses for the establishment and running of the school are proposed to be met and whether any application is proposed to be made for any aid; (g) the composition of the managing committee of the proposed new school until the new school is recognized and a new managing committee is constituted W.P.(C) Nos.4426-32/2006 & 555/2007 Page 13 of 28 in accordance with the scheme of management made under the Act; (h) the proposed procedure, until its recognition under the Act, for the selection of the head of the school and other teachers and non-teaching staff and the minimum qualifications for their recruitment; (i) the proposed scales of pay for the head of the school and other teaching and non-teaching staff until the school is recognized under the Act; (j) admission, tuition and other fees which would be levied and collected until its recognition under the Act, from the students of the proposed new school; (k) any other facility which is proposed to be provided for the students of the proposed new school. (3) The Administrator may, after considering the particulars specified in the intimation given to him under sub-rule (2) and after making such inquiries as he may think fit, inform the person or persons by whom the intimation was given to him whether or not opening of the proposed new school would be, in the public interests: Provided that the Administrator shall, if he is of opinion that the number of schools existing in the Zone where the new school is proposed to be opened is sufficient to meet the needs of the Zone, inform the person or persons, by whom the intimation was given to him that the opening of the new school in such Zone would be against the public interest and may indicate to such person or persons, any other Zone which, in his opinion, needs the establishment of a new school, and thereupon it would be open to such person or persons to open a new school in the Zone indicated by the Administrator. Rule 46: Closing down of a school or any class in a school - No managing committee shall close down a recognized 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, W.P.(C) Nos.4426-32/2006 & 555/2007 Page 14 of 28 who shall , before giving such an approval , consult the Advisory board. Rule 47: Absorption of surplus (employee), etc.—(1) Where as a result of--- (a) the closure of an aided school or any class or classes in any aided school; or (b) withdrawal of recognition from an aided school; or (c) withdrawal of aid from an aided school, any student or employee becomes surplus, such student or employee, as the case may be, may be absorbed as far as practicable, in such Government school or aided school as the Administrator may specify: Provided that the absorption in Government service of any employee who has become surplus shall be subject to the availability of a vacancy and shall be subject further to the condition that the concerned employee possesses the requisite qualification for the post and has not been retrenched by the management of the aided school on any ground other than the ground of closure of the school or any class or classes of the school, or withdrawal of recognition or aid from the school: Provided further that where any such surplus employee is absorbed in a Government school, he shall be treated as junior to all the persons of the same category employed in the Government schools on the date immediately preceding the date on which he is so absorbed, and where such surplus employee is absorbed in an aided school, he shall rank as junior to all the persons of the same category employed in that school on the date immediately preceding the date on which he is so absorbed. (2) Where any surplus employee is absorbed under sub-rule(1)— (a) the salary and other allowance last drawn by him at the school from which he has become surplus shall be protected; W.P.(C) Nos.4426-32/2006 & 555/2007 Page 15 of 28 (b) his provident fund account shall be transferred to the school in which he is so absorbed, and thereupon such provident fund shall be governed in accordance with the rules and regulations in force in that school in relation to provident fund; and (c)the period of his qualifying service in the school in which he had worked before such absorption and any previous period of qualifying service, if any, in any recognized aided school in Delhi shall be taken into account for the purpose of computing his pension and other retirement benefits. (3) Without prejudice to the provisions of sub- rules (1) and (2), where an employee becomes surplus by reason of the closure of any class or section thereof or the discontinuance of the teaching of any subject, such employee may be absorbed in the first instance, as far as practicable, in such Government or aided school as the Administrator may specify, and if the class or section which was closed is reopened by the former school or if any new class or section thereof is opened by such school or if the subject, the teaching of which was discontinued, is re-introduced by such school, or strength of the staff of the former school is increased, such employee shall be reabsorbed in the former school; but if such re- absorption does not take place within a period of five years from the date of absorption of such employee in the Government or aided school, such employee shall be regularly absorbed in such Government or aided school, as the case may be. (4) Re-absorption of an employee in a former school shall not affect his continuity of service or his seniority in relation to that school or his emoluments, provident fund, gratuity and other retirement benefits. Explanation – For the purposes of sub-rules (3)