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2020 Supreme(Guj) 378
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Delhi Public School, East – Petitioner
Versus
Central Board of Secondary Education – Respondent
R/Special Civil Application No. 5670, 3748, 5161 of 2020
Decided On : 23-03-2020
For the Petitioner:Mr. Mihir Joshi, Senior Advocate With Mr. Bijal Chhatrapati, Mr. Arvind Parikh, Mr. Tabish Samdani & Mr. Siddharth Sinha, Advocates for J. Sagar Associates
For the Respondent:Ms. Manisha Lavkumar, Government Pleader With Mr. Kanva, Antani And Ms. Divyangna Jhala, AGP, Mr. HS Munshaw, Mr. KV Shelat, Advocate With Mr. Shaival Shelat, Advocate
Point of Law:
Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help us to correlate Article 21 with Article 14, Article 19 and, so on.
Headnote:
Gujarat Primary Education Act and Rule 109 - Section 40A(7) - Constitution of India,1950 - Article 21A - Petition aggrieved by orders passed by Central Board of Secondary Education District Primary Education Committee and State Government these three petitions have been preferred - Challenging order of Central Board of Secondary Education has with immediate effect withdrawn provisional/general affiliation to Senior Secondary Level granted to petitioner - School also seeks to challenge order is filed by four parents of children studying in school assailing abovementioned orders - Special Civil Application praying for a direction that state government may take an appropriate decision to continue to operate and conduct the affairs of school and also for a direction to initiate strictction civil as criminal against owners of school - Held, Court is quashing orders of CBSE of de-affiliating School and that of derecognition of State only on limited ground of they having been passed without following procedural laws and leaving it open for both authorities to pass fresh orders in accordance with law after giving an opportunity of hearing and due inquiry in interregnum School may be managed as proposed by Delhi Public School Society Delhi with a reconstituted management excluding respondents - Court decision on affiliation and recognition is taken by CBSE and State after following rules of natural justice and statutory mandate Gujarat Primary Education Act and Rules and RTE Act and Rules - Court fresh decision on continuance of affiliation and recognition shall be taken within sixteen weeks from date of receipt of certified copy of Order of this Court - Petition Senior Advocate tendered to Court a letter Delhi Public School Society addressed to Secretary Of State Society has proposed that DPS East be allowed to continue and be managed by a Managing Committee set up by DPS Society - It shall have a reconstituted Managing Committee with joint efforts of Government Of Gujarat - Parents have also in their written submission expressed a willingness that School be allowed to be run by same management Administrator of State Government its control till a full-fledged enquiry is conducted in arriving at truth - Petition allowed (Para 29 and 30)
Facts of the Case:
Special Civil Application No. 5670 of 2020 has been preferred by the Delhi Public School challenging the order of Central Board of Secondary Education dated 30.11.2019/1.12.2019 by which the Central Board of Secondary Education (CBSE) has with immediate effect withdrawn the provisional/general affiliation to the Senior Secondary Level granted to the petitioner. The school also seeks to challenge the order dated 02.12.2019 passed by the District Primary Education Officer cancelling the recognition dated 21.03.2012 and the order dated 05.12.2019 passed by the State Government for taking over the administration of the school.
Finding of the Court:
Court is quashing orders of CBSE of de-affiliating School and that of derecognition of State only on limited ground of they having been passed without following procedural laws and leaving it open for both authorities to pass fresh orders in accordance with law after giving an opportunity of hearing and due inquiry in interregnum School may be managed as proposed by Delhi Public School Society Delhi with a reconstituted management excluding respondents - Court decision on affiliation and recognition is taken by CBSE and State after following rules of natural justice and statutory mandate Gujarat Primary Education Act and Rules and RTE Act and Rules - Court fresh decision on continuance of affiliation and recognition shall be taken within sixteen weeks from date of receipt of certified copy of Order of this Court - Petition Senior Advocate tendered to Court a letter Delhi Public School Society addressed to Secretary Of State Society has proposed that DPS East be allowed to continue and be managed by a Managing Committee set up by DPS Society - It shall have a reconstituted Managing Committee with joint efforts of Government Of Gujarat - Parents have also in their written submission expressed a willingness that School be allowed to be run by same management Administrator of State Government its control till a full-fledged enquiry is conducted in arriving at truth.
Result: Petition allowed
JUDGMENT :
Draft amendment granted in Special Civil Application No. 3748 of 2020.
Rule. Mr. Kanva Antani and Ms. Divyangna Jhala, learned AGPs appearing for the State Of Gujarat and the DEO, Mr. K.V. Shelat, learned advocate for the CBSE and Mr. H.S. Munshaw for the District Primary Education Officer, Ahmedabad District Panchayat waive service of notice of Rule.
1. Being aggrieved by the orders passed by the Central Board of Secondary Education, the District Primary Education Committee and the State Government, these three petitions have been preferred.
1.1 Special Civil Application No. 5670 of 2020 has been preferred by the Delhi Public School challenging the order of Central Board of Secondary Education dated 30.11.2019/1.12.2019 by which the Central Board of Secondary Education (CBSE) has with immediate effect withdrawn the provisional/general affiliation to the Senior Secondary Level granted to the petitioner. The school also seeks to challenge the order dated 02.12.2019 passed by the District Primary Education Officer cancelling the recognition dated 21.03.2012 and the order dated 05.12.2019 passed by the State Government for taking over the administration of the school.
1.1 Special Civil Application No. 5161 of 2020 is filed by four parents of the children studying in the school assailing the abovementioned orders. Special Civil Application No. 3748 of 2020 has been filed by the students of the school through their parents assailing the order dated 02.12.2019 and praying for a direction that the state government may take an appropriate decision to continue to operate and conduct the affairs of the school and also for a direction to initiate strict action civil as well as criminal against the owners of the school.
2. The facts in brief leading to the filing of these petitions are as under:
2.1 The School – Delhi Public School East applied for a No Objection Certificate on 11.09.2009 to the Education Department, through the Gujarat State Secondary Education Board. On such a proposal, the State by a letter dated 10.10.2009 asked for various documents and information. The Education Department sent an intimation that the action on the proposal for NOC shall be taken only after receiving BU permission and other documents. On 21.06.2010, the School made an online application to the CBSE for affiliation with the Board. In the online application so made as against the column, whether NOC/recognition from the State/UT, the School had mentioned “NO” and had also attached a separate page stating that “ the NOC file is under process”.
2.2 On 21.10.2010, the Board rejected the proposal dated 21.06.2010 for Composite Provisional Affiliation upto Secondary Stage. Four deficiencies were pointed out, of which one was that the School had not submitted NOC issued by the State Government. On 21.09.2011, the School filed an application to the DEO, Ahmedabad Rural for granting NOC for Std 1 to 6. The State by a letter dated 01.10.2011 requested the Gujarat Board to forward certain documents. The State Board in turn asked the School to furnish such documents including BU Permission, NA Permissions etc. The School by a letter dated 12.11.2011 forwarded the documents pursuant to which the State Board addressed a Letter to the Education Department referring to the aforesaid letter and the spot inspection report dated 12.01.2012 and forwarded the proposal to it.
2.3 The State rejected the proposal for NOC by a communication dated 04.02.2012 on the ground that there were no NA permissions of the land in question. A request was made by the School, on 08.02.2012 for a conditional NOC with a letter to the Education Minister of the same date for a conditional NOC. The Education Minister on 07.03.2012 recommended that a conditional NOC be granted to the School. In the meantime, the District Primary Education Officer based on the inspection report of January
