Upras Vidyalaya and Anr v. The Director of Education and Anr

3. Office Assistant handled the cash which is kept in almirah and safe chest duly imbedded in wall.

4. The Account has not audited by the CA for the year 2010-11.

5. Salary to the staff is being paid upto 07th of the preceding month whereas it should be paid on last working day of the month.

6. Facility of re-imbursement of medical claim and LTC is not provided to the staff.

7. The development fees collected was Rs.16,26,00/whereas the depreciation was only Rs.5,64,620/- and the balance of the development fund as on 31.3.2010 was Rs.1,96,64,843/-. Thus in excess of the actual requirement.

8. The balance in bank as on 31.3.2010 was Rs.2,54,83,228/-, it should be kept in the form of FDR so that the interest could be earned. Thus it is a financial mis-management.

9. As per section 10 (1) of DSEA & R 1973 the pay and allowances of employees of unaided/recognised schools should be at part with their counterpart in the Govt Schools but appropriate grade pay has not been allowed in the following cases as per details below:- (a) Smt. Mutawali Tiwari, TGT was allowed grade pay of Rs.4200/- instead of Rs.4600/- admissible to the post of TGT. (b)Smt. Annu Bamrara, TGT was also given grade pay of Rs.4200/- instead of Rs.4600/- admissible to the post of TGT.

(c) Smt Pravati Rath, has been allowed grade pay of

Rs. 2800/- instead of Rs. 4200/- admissible to the post of primary teacher. (d)Smt. Amita Dass Gupta, PGT is being paid grade pay of Rs. 4800/- and she has been granted ACP wef January 2011 and is entitled to grade pay of Rs.5400/-. She was allowed ACP wef January 2011 instead of due date July 2007. (e) Smt. Yashoda Sharma is being paid grade pay of Rs.4800/- as she has been granted ACP in the scale of PGT wef Jan 011, she should have been allowed grade pay of Rs.5400/- and date of grant of ACP should have been Jul 2004. (f) Sh. Ranunuj Rai, Peio is a 12th pass and should be allowed grade pay of Rs.1800/- wef 01st January 2006 whereas he is drawing grade pay of Rs 1300/-. (g)Sh. Raj Kumar, Sweeper being a non-matriculate should be sent for training and after the training be allowed grade pay of Rs.1800/-.

10. Sh.Hari Lal Ex-Security Supervisor was paid Rs.1,85,049/- vide cheque no.107515 dated 07.06.2011 but not voucher and orders of any competent authority was provided by the school. It is also not known that on what account this amount was paid by the manager and Treasurer without anybody‟s approval.”

13. Taking into consideration the acts of omissions and commissions, the General Secretary of the Samaj/ Society in discharge of its official duties filed a Criminal Complaint with the Police Station Vasant Vihar against Sh.Janardan Rai, ex-Manager and the present Members-in-charge, liable for causing wrongful loss to the petitioner no.1 and the society on 28.10.2011. Since no action was taken, a criminal complaint under Section 156(3) Cr.P.C. was filed before the Additional Chief Metropolitan Magistrate, Saket, Delhi for registration of the FIR. By an order dated 3.2.2012 the learned Metropolitan Magistrate directed registration of the FIR (FIR No.47/2012). Sh.Vinod Rai, relative and associate of the ex- Manager, Sh.Janardan Rai, as a counter-blast to the FIR No.47/2012, filed a complaint under Section 156(3) Cr.P.C. and pursuant to the orders of the learned ACMM, FIR No.85/2012 was also registered.

14. On 29.2.2012 the respondent no.1 issued a show cause notice for taking over the school. It is the case of the petitioner that the show cause notice contained irregularities committed by the earlier management and no irregularity was pointed out during the period, the present management was formed i.e. on 13.10.2011. In response to the show cause notice, the petitioners pointed out that all defects of the earlier management were duly removed and rectified; and in the reply of 12.3.2012 the following points were highlighted: “The present management committee is maintaining manual cashbook and other records manually where the concerned employee is authenticated. Office Assistant is now handling the cash in Hard cash Box fixed in the wall of a room which is at very safe place under heavy locks and key and security supervision. The accounts have now been audited by C.A. for the year 2010-11 which was not even touched by the ex-manager Sh.Janardan Rai and his family MC /EC team. The present management since it taken over i.e. from 13th Oct., 2011 is paying the salary of staff on the last day of the due month itself. Not only this, all the dues of the staff which were not paid by the Ex.-Manager, Janardan Rai and former MC of school has now been paid. Facilities of re-imbursement of medical claim and LTC are now provided by the present management to the staff. The development fund have been used for the developmental activities of the school. That due to the financial mismanagement done by the Ex- Manager Sh.Janardan Rai, an FIR has been lodged by the present EC of the Samaj and MC of the school vide FIR No.47/12 of P.S. Vasant Vihar, New Delhi. The amount of Rs.2,55,11,228/- was accumulated by the former MC particularly Sh.Janardan Rai, Ex-Manager by not paying the dues of the staff, illegal deduction salary of staff, noinfrastructural development, non-payment of security deposit of the students, etc. which have now been made transparent and regularized and maintained and expenditure made in their respective heads in the all-round development of the school and there is no payment of any kind of dues of the staff or otherwise. As per section 10(1) of DSEA&R 1973, the pay and allowances of employees which was not paid by the exmanager Sh.Janardan Rai has now been paid to all namely: Smt.Muktawali Tiwari, TGT grade pay of Rs.4600/- was regularized instead of Rs.4200/- Smt.Annu Bamrara was also paid as TGT Grade of Rs.4600/- Smt.Pravati Rath has been paid PRT grade of Rs.4200/-. Smt.Amita Dasgupta, PGT ACP was allowed and paid from July, 2007. Smt.Yashoda Sharma, ACP granted with due date. Sh.Ramanuj Rai grade has been regularized. The case of Sh.Raj Kumar, Sweeper has been proceeded and needful has been done. Sh.Hari Lal, Ex-Security supervisor was paid Rs.1,85,049/vide cheque No.107515 dated 7.6.2011 by Sh.Janardan Rai, Ex-Manager to hushup the case of attempt to rape which he has committed with the wife of Sh.Hari Lal Yadav which is under investigation and an FIR is pending registration against Sh.Janardan Rai and his associates including his real son and son-in-law. All the seven teachers whose names have been mentioned have got their dues of 60% the arrears of 6th Pay Commission.”

15. It was also brought to the notice of the respondents vide letter dated 12.3.2012 that the staff also expressed their satisfaction with the present management with regard to salaries, renovation of staff room, new furniture, water dispenser, oil heaters, new lockers for teachers etc. Another reply was sent on 24.3.2012 and the petitioner was under the impression that the respondents were satisfied with the replies and after a period of six months the impugned order was passed.

16. It is the case of the petitioner that the allegations made in the impugned order of take over were not part of the show cause notice. It has also been mentioned in the writ petition that on 28.5.2012 Mr.Vinod Rai, relative of Sh.Janardan Rai, Ex-Manager of the school filed a suit in the Delhi High Court being CS(OS)No.1679/2012 for declaration, mandatory and permanent injunction and rendition of accounts, declaring that the elections held vide order dated 25.9.2011 are fictitious and bogus. Together with the suit, two applications for interim relief were filed under Order 39 Rules 1 and 2 and under Order 40 Rule 1 for appointment of a receiver being I.A.Nos.10773-04/2012, with the prayer to restrain the defendants to operate the account, however, no interim orders have been passed till date.

17. It is also submitted that on 11.7.2012 the Deputy Director of Education (SW-A) on instructions of respondent no.1 vide letter dated 11.7.2012 informed the petitioner no.1 about an inspection to be conducted on 12.7.2012 at 11:00 a.m. citing baseless reasons including harassment of employees and financial irregularities. However, without conducting any inspection, the respondent no.1 passed an order on 12.7.2012 by which it was ordered that the bank account of the petitioner no.1 would not be operated by anyone without prior permission of the Deputy Director of Education (SW-A), on the ground of pendency of an FIR No.85/2012 under Sections 406/420/120-B IPC and pendency of Writ Petition bearing No.7187/2011 in respect of some disputes between the management and the school. The order also mentions that different parties were staking claim to the management of the school, hence, relying on section 24(3) of Act, 1973, read with Rules 43, 181, 182, 185 of the Rules, 1983, respondent no.1 passed the impugned order.

18. It may be noticed that the challenge to the aforesaid order was made by filing writ petition No.4308/2012 which is also being decided along with the present writ petition. It may also be noticed that while issuing notice in WP(C) 4308/2012, certain interim orders were passed on 20.7.2012.

19. On 16.8.2012 in W.P.(C)7187/2011, filed by Ex. Manager, Sh.Janardan Rai, a learned Single Judge of this Court passed an order of taking over the petitioner no.1 school and observed that there are two management committees which are competing with each other and there are claims and counter claims, allegations and counter allegations made by the said two management committees against each other. The learned Single Judge also took note of certain purported illegalities and irregularities committed by the Managing Committee, and order dated 16.8.2012 was passed directing the respondent no.1 to take over the management of the school till the claims and counter claims of the two management committees are settled in a civil court/ tribunal, where evidence can be led to prove who is right and who is wrong.

20. On 28.8.2012 aggrieved by the order dated: 16.8.2012 passed by the learned Single Judge of this Hon‟ble Court, the petitioners herein, filed an LPA bearing No.597 of 2012 inter-alia seeking quashing of the order dated: 16.8.2012 being without jurisdiction and arbitrary. Vide order dated 4.9.2012 the Division Bench-I of this Hon‟ble Court disposed of the said LPA with observation that “ having regard to these facts, the Director of Education has itself recommended and the Hon’ble Lt. Governor as an administrator has to take the decision in the matter, it is not necessary to deal with this appeal. Needless to mention that if the Lt. Governor passes an order taking over the management of the school, it would be open to the appellant to challenge the order in accordance with law. We only expect that the Lt. Governor shall take, whatever decision is to be taken immediately.”

21. It is also the case of the petitioner that despite the statement made before the Division Bench, the respondents have passed the impugned order by placing reliance on the order dated 16.8.2012 passed by the learned Single Judge and without taking into account the order of the Division Bench. It is also pointed out that after the order dated 4.9.2012 passed by the Division Bench, the respondent no.1 ordered inspection for 15.10.2012 vide letter dated 18.9.2012. However, no inspection was carried out but the impugned order was passed.

22. It is contended by Mr.Kher, counsel for the petitioners that the impugned order passed for taking over the management of the petitioner, school for three years is unwarranted and uncalled for, it is against all cannons of justice and principles of natural justice have not been complied with. The order is arbitrary, bad in law and filed at the behest of the ex-Management and more particularly a person who has been closely associated with the Directorate of Education in a very senior position; and it is not in the interest of justice, nor in the interest of the school. It is contended that the present management cannot be punished for the irregularities committed by the earlier management during its tenure which ended on 13.10.2011 and in the inspection carried out on 18.10.2011 and 19.10.2011 there is not even a whisper about the present management which was formed on 13.10.2011.

23. It is submitted that the respondents were fully satisfied with the detailed replies dated 12.3.2012 and 24.3.2012, which is evident from the fact that no action was taken for seven months and after seven months without any cogent reasons passed the impugned order. It is strongly urged before this court that the grounds raised in the impugned order were not part of the show cause notice and the order of take-over cannot be passed without giving an opportunity to show cause and hearing.

24. It is also argued that the impugned order shows non-application of mind, as the respondents have failed to consider that all the defects and deficiencies of the earlier management as stated in the show cause notice dated 29.2.2012 were removed and rectified by the new management and the respondents were informed of the same. The respondents failed to take into consideration that the entire staff members (teaching and non/teaching) expressed their satisfaction with the present management, who are running the school peacefully and as per the Act and Rules, salaries are being paid to the staff as per the 6th Pay Commission regularly and renovations etc., has been carried out.

25. It is further pointed out that the order passed by the respondent No.1 smacks of arbitrariness which is also evident from the fact that in the order reference is made to FIR No.85/2012, which was registered as a counter blast to an earlier FIR No. 47/2012 by the petitioners, however, respondents did not consider that an earlier FIR was registered at the instance of the petitioners against the complainant of FIR No.85/2012 which is a counter-blast. The respondents also did not detail as to which parties are staking claim to the management of the school and also did not consider the pendency of the suit for declaration bearing CS(OS)No.1679/2012, where no interim orders were passed. It is also contended that the respondents could not have granted relief to certain disgruntled sections, who were not granted relief even by the High Court.

26. Reliance is placed on section 24 of the Delhi School Education Act, to show that the Director has the power to conduct the inspection of the school and also give a direction/opportunity to the management to rectify any defect or deficiency found at the time of inspection or otherwise in the working of the school and in case the management fails to comply with any direction, the Director may take such action as deem fit including stopping of aid and withdrawal of recognition.

27. It is argued by Mr.Kher, that the impugned order has been passed without directing any inspection or for non-compliance of any direction to the Manager. It is also submitted that although an order for inspection dated 18.9.2012 was passed, but before the inspection was fixed, the impugned order was passed.

28. Mr.Kher further contends that the respondent no.1 in the impugned order dated 26.9.2012 alleged that the money is being withdrawn illegally even without the approval of the Principal of the school. It is pertinent to mention that the petitioner no.1 apprised the bank vide letter dated 3.10.2011 about the provision/Rule 174 of the Delhi School Education Rules 1973 that according to the said provision, it is mandatory that no withdrawal from the school fund can be made without the joint signatures of the head of the school i.e. Principal and Manager of such school / authorized member of the managing committee. However, the Bank vide letter dated 13.10.2011 informed the petitioner no.1 that operation of the bank account shall be allowed only as per the old mandate / scheme of management approved by the Director of Education. The signature of Principal is not mandatory as per scheme of management however signature of treasurer is mandatory as per scheme of management. Even though the petitioner no.1 vide letter dated 10.12.2011 requested the respondent no.1 for necessary amendment in the approved scheme of management of the petitioner no.1 in the meeting of Kendriya Karya Samiti of the Samaj held on 13.10.2011 however, the respondent no.1 has not replied the abovesaid letter till date.

29. Counsel for the petitioner contends that though merely because different parties are staking claims to the management of the school cannot be a ground for taking over, as the school is a private un-aided school and the Director of Education cannot interfere, nor perform the duties of the Court in deciding disputed questions of fact and side with anyone group; moreover, when a civil suit was pending in the Delhi High Court, wherein no interim orders were passed in favour of the said plaintiff.

30. It is submitted that even otherwise, the impugned order could not have been passed, as the High Court was seized of the matter in the Writ Petition No.4308/2012 and the High Court had declined to pass any interim order in favour of the petitioner, but a working arrangement was made.

31. Reply affidavit has been filed by respondent no.1. In the reply, a preliminary objection has been raised with regard to the maintainability of the writ petition on the ground that against the order passed under Section 20 of Delhi School Education Act for taking over the management of the school a remedy under Section 20(4) of the Delhi School Education Act is provided by means of filing an appeal to the Lieutenant Governor. Having failed to exhaust the alternate remedy available, it is contended by learned counsel for respondent no.1 that the writ petition should be dismissed.

32. It is further contended by learned counsel for respondent no.1 that in the year 2011, Sh.Janardan Rai, Manager of Upras Vidyalaya, had filed W.P.(C)7187/2011, inter alia, challenging the Office Order of the Chairman of the Managing Committee dated 10.9.2011 wherein the said Sh.Janardan Rai was asked not to continue functioning as a Manager, pending a proposed inquiry on charges of irregularities. In the aforesaid writ petition, vide Order dated 13.10.2011, the Director of Education was directed in the first instance to depute at least two senior level officers to visit the school, in question, and inspect its records to ascertain whether the books and accounts of the school were being maintained in accordance with the provisions of Delhi School Education Act and Rules. It was further directed that a report, inter alia, on whether the decision of the EC of the society and MC of the school are properly minuted in terms of Delhi School Education and Rules. Officers were directed to visit the school between 15.10.2011 and 27.10.2011. Thereafter the report was to be placed on record by way of an affidavit. Reliance is placed on paras 7 to 10 of the Order dated 16.8.2011 passed in W.P.(C) 7187/2011, which read as under:

33. LPA No.597/2012 filed by the petitioners herein was also disposed of on 4.9.2012 wherein the following order was passed:

34. Ms.Sindhwani, learned counsel for respondent no.1, contends that a show cause notice dated 29.2.2012 was issued to the School Management under Section 20 of the Delhi School Education Act whereby the school was asked to show cause as to why the school should not be taken over under the Delhi School Education Act. Reply dated 12.3.2012 was received wherein the Principal had detailed the improvements made by the present management. It was also informed that the election of the parent body of Uttar Pradesh Samaj was held on 25.9.2011 and a new Managing Committee of the school was constituted on 13.10.2011. The reply received was not found to be satisfactory. Another reply was received on 24.3.2012 addressed to the Director of Education. Meanwhile, letters/complaints were received by the Director of Education signed by two Managers i.e. Sh.Janardan Rai and Sh. R.K. Rai. Complaints were received with regard to misappropriation of school funds, which were placed before the Director of Education. The Director of Education issued directions for inspection of the school, which was conveyed to the school vide letter dated 11.7.2012. On the same day, the Principal of the school informed the Deputy Director that the Manager of the School was out of station and would be available after ten days. Thirty days‟ time was sought to prepare for the inspection. Hence the inspection could not be conducted. It is clarified in the counter affidavit that routine annual inspections are carried out at least once a year and as per the order dated 7.9.2012 the school was to be inspected and the letter dated 19.9.2012 in respect of the inspection had no connection with the process of taking over of the school for which show cause notice had already been issued on 29.2.2012.

35. It is also the case of respondent no.1 that despite the stand of the petitioner that a new managing committee had been appointed the disputes between the two groups continued, which were affecting the working of the school, students and staff. The Director of Education was also not given any intimation about the proposed elections. It is also pointed out that dispute with regard to the management of the school still remains unresolved and a suit has been filed by Sh.Vinod Rai challenging the elections. There are complaints between the management, teachers and employees and also complaints with regard to rustication of one Master Abhishek Kumar Singh of Class IX on the ground that his mother had misbehaved with the Principal of the school. The said Master Abhishek Kumar Singh is the son of the lab assistant, who is working in the school, although he has been suspended. In view of the complaints regarding embezzlement of funds and misuse/siphoning of crores of rupees from the bank accounts of the school, the respondent no.1 issued an order dated 12.12.2012 directing that the bank account of the school shall not be operated by anyone without prior approval of Deputy Director (SW-A). The aforesaid order was challenged by filing W.P.(C) 4308/2012. While issuing notice in the said writ petition, interim directions were also issued by this Court.

36. It is further the case of respondent no.1 that considering the various complaints received against the management of Upras Vidyalaya alleging mismanagement, embezzlement of funds and misuse/siphoning of crores of rupees from the bank accounts of the school, various irregularities observed during the inspection of the school and in view of the fact that different parties were staking claim for management of the school, the Lieutenant Governor in exercise of powers conferred under Section 20 of Delhi School Education Act was pleased to order the Director of Education to take over the management of the school for a period of three years.

37. An application [CM.No.18263/2012] has been filed under Order 1 Rule 10 CPC by the Ex-Manager, Sh.Janardan Rai, seeking intervention in this writ petition.

38. Although, Mr.Khanna, counsel appearing for the applicant was heard, but no formal order of impleadement was passed in favour of the appellant. It may be noticed that the applicant has filed a substantive Civil Suit, which is pending adjudication on the original side of this court. It may be noticed that this civil suit was instituted as far back as in the year 2012. File of this suit was called and it revealed that the plaintiffs have shown little or no interest in pursuing said matter, which was evident from the fact that since the year 2012 till date the matter remains pending before the Joint Registrar and no efforts have been made even to argue the application under Order 39 Rules 1 and 2 CPC.

39. Counsel for the applicant has supported the arguments raised by Ms.Sindhwani, counsel appearing on behalf of the Directorate of Education. While relying on Central Academy Sr. Secondary School Vs. Lieutenant Governor and Ors., reported at 66 (1997) DLT 25 (DB), it has been urged before this court that the High Court is not a court of appeal and moreover there is no legal infirmity in the impugned order of taking over of the school. It has also been argued that the department has followed the principles of natural justice, as a show cause notice was issued to the school and the reply filed by the school was considered.

40. It is also the case of the respondents as also the applicant that the petitioner has not availed of an alternate remedy of appeal provided under Section 20(4) of the Act.

41. In the case of Central Academy Sr. Secondary School (supra), a request was made by the school for closing down. The department did not deem it appropriate to accept the same, but issued a show cause notice for taking over. The Division Bench observed that it was for the authorities to consider having regard to the locality where the school is functioning and the needs of the residents of the area or having regard to the plight of the children and teachers to decide whether the management could be permitted to close down the school. The Division Bench has also noticed the result of the inspection which was carried out and also that the school was directed to remove the defects and furnish a compliance report. The Division Bench considered the response of the school, which had denied most of the accusations. A second inspection was carried out to verify the facts in reply to the show cause notice and it was noticed that the deficiencies had not been cured. It was also found that the enrolment of the students had been drastically gone down, new admissions had been deliberately avoided, resultantly the final order was passed.

42. There is no quarrel with regard to the proposition laid down by the Division Bench in Central Academy Sr. Secondary School (Supra)). No doubt in proceedings under Article 226 of the Constitution of India the Court cannot sit over the order as if it was a court of appeal, although, when an order of taking over which is a drastic order and which entails serious consequences, is to be passed, grant of personal hearing would surely be in the interest of the staff and the children more particularly in a private unaided school. But merely because no personal hearing was granted, cannot by itself be a ground to set aside the impugned order, if other principles of natural justice have been followed and if the court or in this case the Lieutenant Governor is satisfied on the basis of the material placed on record that the school was required to be taken over.

43. Ms.Sindhwani and Mr.Khanna are also right in their submissions that administrative authorities are not required to record reasons as elaborately as in an order passed by a court. But surely what is required upon reading of the order must show application of mind to the relevant facts and reasons howsoever short they may be, should have to be recorded. The case of Central Academy Sr. Secondary School (Supra) sought to be relied upon by the counsel for the Directorate of Education and the applicant, in my view is not applicable at all to the facts of the present case.

44. It may be noticed that in the present case, in reply to the show cause notice the petitioners made categorical assertions that the deficiencies which were pointed out pertained to the period of the earlier management. With regard to the deficiencies and the issues raised in the show cause notice of the non-payment of dues, non-payment of salaries as per the 6th Pay Commissioner and other complaints of the staff, the present management of the school in response to the show cause notice categorically stated that all deficiencies stand cured, all payments made and action taken against the previous management, including by filing an FIR against the Manager, to show the seriousness and the effort to run the school smoothly. Statements of all the teachers were also enclosed with the reply to the show cause notice, all of which it seems was not taken note of, as it is not reflected in the final order.

45. The final order refers to an FIR which was in fact registered subsequently against the present management by the earlier management, but the order has not referred to an FIR registered earlier in point of time by the present management against the Ex-Manager, which is a surprising factor. During the course of argument, a pointed question was asked to the counsel for the Directorate of Education, as to who was paying the salary to the staff, who was operating the bank accounts and carrying out the day-to-day functioning of the school. It was not denied that it is only the present management, who is carrying out the day-to-day functioning of the school and the teachers and staff are being paid by the present management. The bank account is also being operated by the present management.To say that the school should be taken over on account of disputes between the two managements is a statement which may be factually correct because no doubt there is a dispute [a suit is pending], but what the ex management could not achieve directly cannot be permitted to be achieved indirectly and that also through an independent body, being the Directorate of Education, also the dispute seems to be now only on paper, as is evident from the fact that the ex-management, who have instituted a suit in the Delhi High Court have taken no steps to pursue the same.

46. It may be noticed that the dispute between the two managements is to be resolved in a civil suit upon evidence, neither it can be resolved in writ proceedings, much less by the Directorate of Education, who has no power to do so. In fact the Directorate of Education should have taken note of the fact that despite the former management having approached the High Court they were unable to obtain any order of injunction or any favourable order.

47. It has been repeatedly held that wherever an alternate remedy is available, a writ petition should not be entertained. It has also been repeatedly held that this is not an absolute rule, whenever the order so impugned is illegal, perverse and there is error apparent on the face of the order, there is no absolute bar against entertaining a writ petition.

48. In the case of U.P. State Cooperative Land Development Bank Vs. Chandra Bhan Dubey & Ors., reported at (1999) 1 SCC 741 a question came up for consideration as to whether the U.P. State Cooperative Land Development Bank would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, wherein it was held that the power of the High Court under Article 226 is wide and vast and the High Court would be well within its rights to grant protection be it a wrong done by the State, an instrumentality of the State, a company or a cooperative society, or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdictions. In my view, the present case falls well in the exception where a writ petition would be maintainable.

49. Copies of the inspection held on 18.10.2011 and 19.10.2011 have been placed on record. The inspection report comprises of various columns under different heads, which include office procedure, management of school, academics, facilities in school, financial and miscellaneous. It may be noticed that with regard to 20 columns pertaining to the academics of the school no infirmity or irregularity was found in the inspection under this heading. With regard to the management of the school out of the six columns the infirmity pointed out was primarily that a stationery shop was being run in the premises of the school and also that the managing committee was interfering in the day-to-day functioning of the school. Some lapses were found in the office procedure, however, in the column with regard to the facilities of the school all conditions were found to be satisfactory. Since one of the main reasons for taking over of the school was financial irregularities the entire report with regard to the columns titled „Financial‟ is being reproduced verbatim: FINANCIAL

1. Whether the school has transferred any fund to any Society or Trust, and if so, the details along with the name of Society/Trust, amount, date, etc. Yes, Rs.1904623/-. RS Nineteen Lakhs four thousand six hundred three only, has illegally transferred from school funds to society details mentioned in P.No.-123-126 during the month of June 2011. As per inspection report dated 28/10/12, Sh. Hari Lal Ex. Security supervisor was paid RS185049/- vide cheque no- 107515 dated 07/06/11 but no voucher and orders of any competent authority was provided by the school. In this the school authority intimate letter dated 16/11/12 the said cheque was issued in favour of Sh. Hari Lal by the Ex Manager towards compensation for molesting and an attempt to rape. A copy is enclosed. P.No.- 120-122.

2. Whether the school is maintaining all vouchers of major expenditure items may be physically checked to find whether expenditure items were justified and geniuses of vouchers are looked into. Maintained and found in satisfactory condition and same were incorporated into Audit Report, Audited by Chartered Accountant.

3. Whether school has given any loans/advances to society/any other institution? No, It is also certified by the school authority vide letter dated 16/11/12 P.No.-119

4. Whether the school has raised/charged fee and other dues from students which are not consistent with the deptt. Instructions and the provisions contained in the DSEAR 1973? (Refer Order dated 16/4/2010). As per rule with prior approval of PTA Association Copy P.No.-112-118

5. Whether the school management has maintained its accounts as per provisions of Rules of Rules 173 & 175 of DSEAR, 1973? Maintained and found in satisfactory condition school account operated by the Principal and Manager, as per P.No.-110-111.

6. Whether the school is regularity fling the statement of the fees to be levied by such school during the ensuring academic session as per the provision of Section 17 of DSEAR, 1973 since the date of its recognition? (Copy of acknowledgement of the same for the last three years be also furnished along with the inspection report). Yes, enclosed with the annual return P.No.-30-109

7. Whether the school is regular filling the annual return under section 180(i) of DSEAR 1973, Since date of its recognition? (Financial returns for last three year be also furnished along with the Inspection report? Yes, copy annexed as P.No.-30-

8. Whether the school management is paying salary to the teachers and staff as per the recommendations of 6th Pay Commission or whether it is violating provision of section 10(1) of DSEAR, 1973? Yes, But in some case the pay fixation of the school staff is seems to be incorrect due to wrong rounding of the amount. However the grade pay in respect of employees mentioned in Report dated 28/10/11 vide para 9 has been rectified. 60% arrear of VICPC has been paid 13/03/12 by the present management in r/0 left out (7 cases) according to last inspection report i.e. 28/10/11.

9. Whether money collected by the school is utilized for the development activities Yes, certified by the School Authority P.No.-11/29, but does not seems to be justified and needs verification by the and/or for augmenting the existing facilities, providing safely (sic. Safety) measures, etc. of the school. District authorities.

10. Whether the managing committee of the school is financially viable to manage affairs of the school? Yes

11. Whether donations in any form are demanded by the school management at the time of admissions to the school or when results are declared by the school? No

50. The genesis of these writ petitions [WP(C)No.6288/2012, WP(C)No.4308/2012 and WP(C)No.3643/2013] is a dispute with the ex- Manager of the school (Mr.Janardan Rai). As per the writ petitions [WP(C)No.6288/2012, WP(C)No.4308/2012 and WP(C)No.3643/2013], Mr.Janardan Rai was removed from the management of the school on account of immoral, unconstitutional activities, misappropriate of funds and allegations of attempt to rape. A writ petition was filed by Mr.Janardan Rai being WP(C)No.7187/2011. In the aforesaid writ petition on 13.10.2011 a Single Judge of this Court directed the Directorate of Education, to depute two senior level offices, to visit the school, inspect its record to ascertain whether the books of accounts of the school were being maintained in accordance with the provisions of Delhi School Education Act. It was also directed that a report be prepared on the followings: “(i) Whether the books and accounts of the school are being maintained in accordance with the provisions of DSEA and DSER,

1973.

(ii) Whether the decision of the EC of the society and the MC of the school are being properly minuted in terms of DSEA and DSER, 1973.

(iii) Whether any decision was taken by the EC of the society or

(iv) Whether the letter dated 9th September, 2011 written by the respondent No.4 to the petitioner was as a result of such decision of the EC of the society or the MC of the school.

(v) Whether the decision was purportedly taken by the EC of the society on 9th October, 2011 removing respondent no.4 as the Chairman of the MC and whether such decision was properly minuted; and

(vi) Whether the affairs of the school are being run in accordance with the scheme of the Management of the school.”

51. The report of the Committee was placed before the Court. By an order dated 16.8.2012 the writ petition was disposed of. The Single Judge directed the Directorate of Education to take over the management of the school till the claims and counter claims of the petitioners and respondents are settled. While passing the order, the Court extracted the observations made by the Committee.

52. Aggrieved by the order dated 16.8.2012 the management of the school, petitioner herein filed an LPA No.597/2012, which was disposed of by an order dated 4.9.2012. The Division Bench while disposing of the LPA had passed the following orders:

53. In this backdrop, a detailed show cause notice as to why the school be not taken over by the Directorate of Education, was issued to the petitioner, school on 29.2.2012, after the committee had inspected the school on 18.10.2011 and 19.10.2011. In the show cause notice the directions passed in the writ petition No.7187/2011 were referred to, and reference was also made to the inspection conducted on 18.10.2011 and 19.10.2011. A detailed reply to the show cause notice was given on 12.3.2012 by the school. The school pointed out that the principal body /Uttar Pradesh Samaj and Board of Management of Upras Vidalaya had been constituted on 25.9.2011 and 13.10.2011. Sh.Janardan Rai had been removed and moreover, all the illegalities, financial irregularities, misuse of power were only due to him.

54. It was also informed that after the formation of new Board of Management on 13.9.2011 the picture of the school had completely changed. All employees, teaching and non-teaching staff were being paid salary, grades had been fixed legally, all staff members were being paid salary as per law within time, arrears of 6th Pay Commission had been paid and the financial issues were in conformity with the provisions of Delhi School Education Act and Rules 1973. Statements of staff members to the effect that they had no grievance left with the management, were annexed. Regarding accounts and records it was explained that they were mis-managed by the Mr.Janardan Rai, Ex Manager and were now being regularized and maintained by the present management. Accounts had been audited for the year 2010-2011. A full explanation with regard to the teachers, who had not been paid, as detailed in the show cause notice, were given in the reply running into 21 pages; an additional reply was also issued thereafter on 24.3.2012 that all defects, deficiencies pointed out in the show cause notice had been removed and rectified. After the reply to the show cause notice there was complete silence on the part of the respondent till a final order was passed on 26.9.2012 for taking over of the school. This order of taking over is the subject matter of the writ petition No.6288/2012. This order has been assailed as being illegal, as the grounds of taking over did not form part of the show cause notice. Mr.Kher submits that the order so passed is against all cannons of justice and without following the principles of natural justice. It is contended that the order is bad in law and moreover, the present management and the children of the school cannot be punished for the irregularities committed by the earlier management during their tenure.

55. It is also the case of the petitioner that no opportunity of hearing was granted and there is not even a whisper as to why the reply to the show cause notice was not found to be satisfactory, as defects and irregularities, if any, stood cured and rectified and details were furnished to the respondent in reply to the show cause notice. Statement of the employees and teachers were submitted to the authorities to show that all irregularities stood rectified and the teachers and staff had no grievance against the present management. Mala fides have been alleged against department to the extent that reference has been made to a later FIR filed at the instance of Janardan Rai, however, in the order dated 26.9.2012, no reference to an earlier FIR registered at the instance of the petitioner against Janardan Rai was made and without taking into consideration that the FIR sought to be relied upon was a mere counter blast to the FIR filed by the petitioner herein against Sh.Janardan Rai. The order of 26.9.2012 is also assailed on the ground that a categorical statement was made before the Division Bench that de hors the directions of the Single Judge, the Directorate of Education had already issued a show cause notice to the Management Committee and the Management Committee had taken its reply which was found to be unsatisfactory and the Directorate of Education has itself recommended taking over of the school. In view thereof LPA was disposed of.

56. It is worthwhile to notice that before the Division Bench in LPA No.597/2012 the challenge was that there are no two management committees and only the appellant had the right to run the school. It was also submitted before the Division Bench that the Single Judge had no jurisdiction to issue a direction to the Directorate of Education, to take over the management of the school. Since the entire issue revolves around the order dated 26.9.2012, I deem it appropriate to reproduce the order: “GOVERNMENT OF NCT OF DELHI DIRECTORATE OF EDUCAITON OLD SECTT, DELHI-54 No.F.DE/54/DDE/SWA/2011-12/4653 Date: 26.09.2012 ORDER Whereas various complaints were received against the management of Upras Vidyalaya, a recognized school functioning in Vasant Vihar, New Delhi alleging mismanagement, embezzlement of funds and misuse/siphoning of crores rupees from the bank account of the school etc. Whereas, it is observed that a court case bearing No.WPC 7187/2011 titled as Sh. Janardan Rai Vs. Director of Education & Ors. was also filed by the Manager of the school against the Chairman of the school and the Hon‟ble High Court vide order dated 13.10.2011 in the aforementioned case gave directions to the Directorate of Education to depute at least two senior officers to visit Upras Vidyalaya, Vasant Vihar and inspect its record to ascertain the following:

1. Whether the books and accounts of the school are being maintained in accordance with the provisions of DSEA and DSER 1973.

2. Whether the decision of the EC of the society and the MC of the school are being properly minuted in terms of DSEA and DSER, 1973.

3. Whether any decision was taken by the EC of the society or MC of the school concerning the petitioner counting as the Manager of the school.

4. Whether the letter dated 9th September, 2011 written by the respondent No.4 to the petitioner was as a result of such decision of the EC of the society or the MC of the school.

5. Whether the decision was purportedly taken by the EC of the society on 9th October, 2011 removing respondent No.4 as the Chairman of the MC and whether such decision was properly minuted.

6. Whether the affairs of the school are being run in accordance with the Scheme of the Management of the school. Whereas, as per the directions of the Hon‟ble High Court a Committee of senior officers was constituted which after inspecting the records of the school found the following irregularities-

1. There are financial issues which are not in conformity with the provisions of DSEA and DSER,1973.

2. No decision was taken by the EC of the society or MC of the school concerning the petitioner continuing as the Manager of the school. It is only the decision of the Chairman of the MC of the school.

3. The letter dated 09.10.2011 written by the respondent No.4 to the petitioner was not as a result of such decision of the EC of the society of MC of the school.

4. No decision was purportedly taken by the EC or the General Body of the Society on 9.10.2011 removing respondent no.4 as the Chairman of the MC.

5. The affairs of the school are not being run in accordance with the Scheme of Management of the school. Whereas, the report of the Committee was examined and a Show Cause Notice was issued to the school on 29.02.2012 as to why the Upras Vidyalaya should not be taken over by the Directorate of Education in view of the serious irregularities pointed out. Whereas, the school authorities submitted as reply vide letter dated 12.03.2012 which has been considered and not found satisfactory by the department. Whereas, this Directorate was in receipt of a number of complaints from different corners in respect of alleged embezzlement of funds and misuse/siphoning of crores of rupees from bank accounts of the school. It was alleged that the money is being withdrawn illegally even without the approval of the Principal of the school. It was also reported that an FIR being No.85/2012 under Section 420/406/120B of I.P.C. was lodged in P.S. Vasant Vihar in this regard. Whereas, in view of the alleged serious complaints regarding financial irregularities and in view of the facts that different parties were staking claim to the management of the school, the Director (Education) in exercise of powers conferred under Section 24(3) of the DSEAR, 1973 read with Rules 43, 181, 182 and 185 passed an order dated 12.7.2012 barring the school management from operating the bank accounts of the school without prior permission of Deputy Director, District (South West A) until the outcome of the Court case or till further orders, whichever is earlier. Whereas, the Hon‟ble High Court in WPC. No.7187/2011 vide order dated 16.08.2012 directed the Director of Education to take over the management of school till the claims and counter claims of the petitioners / respondents are settled. Whereas, the facts and records of the matter and the reply submitted by the school authorities vide letter dated 12.3.2012 has been duly considered by the Lt. Governor, Delhi. Now, therefore, in exercises of the powers conferred under sub section (1) of section 20 of the Delhi School Education Act, 1973, the Lt. Governor is pleased to order the Dte. of Eduction to take over the management of Upras Vidyalaya, Vasant Vihar for a period of three years with immediate effect. The Lt. Governor of NCT of Delhi is also pleased to direct under sub Section (3) of Section 20 of the Act that the school shall be managed through the Director of Education or by an officer duly authorized by him. Hence, DDE (South West –A) is hereby appointed as authorized officer of the school. The managing committee / manager of the school shall deliver possession of the entire school properties, equipment, school funds, records and other related documents etc. to the DDE (South West- A) immediately.”

57. A perusal of the order shows that the first paragraph refers to various complaints received leading mis-management, embezzlement of funds, misuse, siphoning of crores of rupees from the bank account of the school; second paragraph refers to observations of the Single Judge in Writ Petition No.7187/2011 and the irregularities pointed out by the Committee appointed by the High Court. The second and third paragraph of this order clearly relies on the order of the Single Judge and the observations of the Committee, thus for the respondent to say that they issued a show cause notice uninfluenced by the order of the Single Judge is factually incorrect.

58. The next paragraph in the order refers to the show cause notice issued to the school on 29.2.2012, while the next paragraph reads as under: “Whereas, the school authorities submitted as reply vide letter dated 12.03.2012 which has been considered and not found satisfactory by the department.”

59. It may be noticed that the show cause notice issued to the school runs into six pages; one reply filed by the school runs in 21 pages and the second reply which has also not even been considered also runs into six pages.

60. The impugned order finds the reply unsatisfactory but no reasons at all are mentioned in the order. It was important for the Directorate of Education to at least give some reasons, may be not in detail, which would show application of mind on his part as to why the response was unsatisfactory, as firstly the management had been changed, and the school had categorically given replies with respect to each irregularity pointed out including books of accounts, installation of cash box, accounts having been audited for the year 2010- 2011, paying of salary on time, reimbursement of medical claim, LTC being provided, development fund for being used for the development activities; for previous financial irregularities, FIR had been lodged, pay and allowances of the employees which was not paid had not been paid to the persons named in the show cause notice i.e. Smt.Muktawali Tiwari, Smt.Annu Bamrara, Smt.Pravati Rath, Smt.Amita Dasgupta, Smt.Yasoda Sharma, Sh.Ramanuj Rai, Sh.Raj Kumar (sweeper), Sh.Hari Lal (Ex-security supervisor). All seven teachers, who had not got of 60% arrears of 6th Pay Commissioner had been paid; all other details were also furnished in the reply as also in the additional reply dated 24.3.2012. The order further goes on to state that the Director of Education had received a number of complaints, alleging embezzlement of funds, money being illegally withdrawn and FIR having been lodged and in view of serious complaints, Director of Education by an order dated 12.7.2012 barred the school management from operating the bank account. Thereafter this order dated 26.9.2012 goes on to state: “Whereas, the Hon‟ble High Court in WPC No.7187/2011 vide order dated 16.08.2012 directed the Director of Education to take over the management of school till the claims and counter claims of the petitioners/ respondents are settled.”

61. What can be understood upon reading of this order is that the management of the school had been taken over on the basis of inspection carried out under the Order of the High Court. But the inspection report does not show embezzlement of funds or siphoning of crores of rupees from the bank account of the school. The observations of the inspection committee relied upon in the order itself does not mention the same. No such show cause notice was issued that crores of rupees have been embezzled and there is not a whisper in the order as to how such a finding had been reached.

62. The short question which comes up for consideration, at this stage, would be whether the order which has far reaching consequences with regard to the taking over of a private unaided school, can be termed as a reasoned order.

63. In the case of Kranti Associates Private Limpid and Others v. Masood Ahmed Khaan and Others, reported at (2010) 9 SCC 496, the Apex Court has highlighted the necessity of giving reasons by a body or authority in support of its decision. The Supreme Court also took into account that initially the Court recognised a somewhat demarcation between the administrative orders and quasi judicial orders but with the passage of time the Supreme Court recognised the fact that the distinction between the two got blur and almost vanished. The Supreme Court also held that an order passed by a quasi judicial body or even an administrative authority affecting the rights of the parties must be a speaking order.

64. Para 14 to 47 of the Kranti Associates Private Limpid and Others (supra) read as under:

69. Further in the case of Saci Allied Products Ltd. U.P. V. Commissioner of Central Excise, Meerut, reported at (2005) 7 Supreme Court Cases 159, The Apex Court has held in paras 16 an 17 as under:

70. Another ground raised by learned counsel for the petitioner is that respondent no.1 has failed to comply with Section 24 (3) of Delhi School Education Act. It has been contended that under Section 24 of the Act, the Director has the power to conduct inspection of the school and also to give a direction to the Manager to rectify any defect or deficiency found at the time of inspection or otherwise in the working of the school and if the manager failes to comply with any direction, the Director may take such action as deem fit including stoppage of aid or withdrawal of recognition of a school. It is, thus, contended that under Section 20 the Administrator has power to take over the management of the school after giving reasonable opportunity to the Managing Committee.

71. In response to this submission of counsel for the petitioner, counsel for respondent no.1 has submitted that the power of Administrator/Lieutenant Governor under Section 20 of the Act are distinct from the power of the Director of Education under Section 24 of the Act. It is further contended that compliance of Section 24(3) is not mandatory before issuance of show cause notice under Section 20 of the Act.

72. In support of this submission, learned counsel for respondent no.1 has placed reliance on Managing Committee Vidya Bhawan Girls Sr. Sec. School Vs. Director of Education & Anr., reported at 198 (2013) DLT 355 (DB), more particularly para 14, which reads as under:

73. I find force in the submission made by learned counsel for respondent no.1 that the powers of the Administrator/Lieutenant Governor under Section 20 of Delhi School Education Act are distinct from the power of the Director of Education under Section 24 of the Act. Section 24 of the Act relates to the inspection of the school and if during the inspection carried out under Section 24(1) or any special inspection carried out under Section 24(2) of the Act any defects or deficiencies are noted opportunity to rectify such defects is liable to be given and in the absence of compliance either the recognition may be withdrawn or the aid may be stopped.

74. In my view the judgment of the Division Bench, relied upon by learned counsel for respondent no.1, is applicable to the facts of this case on all force.

75. In view of the above discussion (i) order dated 26.9.2012 passed by respondents no.1 and 2, directing to take over the management of the school, is quashed; (ii) order dated 12.7.2012 passed by respondents no.1, by which respondent no.1 stayed operation of the Bank account of the petitioner no.1 by anyone without prior permission of Dy. Director Education (SW-A); and letter dated 13.7.2012 issued by respondent No.2, by which respondent no.2 intimated the petitioner no.1 about the order passed on 12.7.2012, are quashed; and (iii) letter no.6931 dated 18.2.2013 issued by respondents, by which request for conducting special investigation under Rule 180(3) of Delhi School Education Rules, 1973 in respect of Upras Vidyalaya, Vasant Vihar, District South West-A, was made, is also quashed. Rule is made absolute. G.S.SISTANI, J DECEMBER 24th, 2014 msr /ssn