T.Samsuddeen And Others v. The Lieutenant Governor And Others

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA WPA/49/2022 IA No. CAN/1/2022 T. Samsuddeen and others ... Petitioners VS.

The Lieutenant Governor and others

...Respondents

For the petitioners : Mr. Gopala Binnu Kumar For the respondent No. 1to 4 : Mr. Deep Chaim Kabir Mr. Ajith Prasad Mr. Shatadru Chakraborty Mr. Ramendu Agarwal For the respondent No. 5 : Mr. Rajinder Singh Hearing on : July 20 & 22, 2022 Judgment on : July 27, 2022 SABYASACHI BHATTACHARYYA, J.

1.

The petitioners are teachers, recruited by due selection process, under the respondent No. 5, which is a private school aided by the Government and is designated for a minority community. 95% of the funds of the school is funded by the Andaman and Nicobar

Administration (for short, "Administration"). The petitioners alleged that on and from March, 2021, the management stopped payment of salary to the petitioners, although the petitioners carried on discharging their duties and responsibilities in view of the future of the students. Thereafter upon agitating on the issue of non-payment, the respondent No. 5 released arrears of the salary for the months of the March, 2021 and April, 2021 on two different occasions. However, the arrears of salary from May, 2021 onwards have been withheld, prompting the petitioners to file the present writ petition. 2.

Learned counsel for the respondent No. 5 alleges that the Administration has been withholding aid, which is to the tune of 95% of the difference between expenditure and income of the school, for which the salaries of staff could not be cleared. It is contended by the respondent No. 5 that the respondent No. 1 to 4 have been illegally withholding such funds, since the respondent No. 5 pointed out certain defects in a Memorandum of Understanding directed to be submitted by the authorities. It is submitted that several clauses of the proposed of MoU are unreasonable and illegal. 3.

On the other hand, the respondent Nos. 1 to 4 allege malfeasance and embezzlement of funds by the society governing the respondent No. 5-school. It is submitted by learned counsel for the respondent No. 1 to 4 that the members of the said society, that is, the Muslim Education Society have been usurping money from the income

of the school derived from fees. Under the extant Regulations, the respondent No. 5 is to mandatorily maintain a reserve fund, which can by tapped into in the event the management of the school does not pay its share of the salaries of the staff. However, the respondent No. 5 has siphoned off the entire funds, leaving zero amount for the reserve fund.

4.

Learned counsel cites State of Uttar Pradesh and others vs. Principle, Abhay Nandan Inter College and others reported at AIR 2021 SC 4968 for the proposition of that the right to grant-in-aid is not a fundament right and that no institution can claim grant-in-aid on its own terms. However, such proposition is not applicable in the present context, since the moot question which has arisen in the present case is with regard to the steps which can be taken by the Administrator and, if so, how such steps have to be taken, within the contemplation of the 1973 Rules and the 1973 Act. The respondent Nos. 1 to 4, in any event, always have the liberty to take appropriate action against the respondent No. 5-school in accordance with the 1973 Rules. Moreover, it is an admitted position that the respondent No. 5 is a recognized schools which features in the grant-in-aid list. 5.

Upon hearing learned counsel for the parties, it transpires to be an admitted position that the respondent No. 5 is affiliated to the Central Board of Secondary Education and is governed by the Delhi

School Education Act and Delhi School Education Rules, both of 1973.

6.

Section 20 of the said Act provides that whenever the Administrator is satisfied that the Managing Committee of any school has neglected to perform any of the duties imposed on it by or under the Act or any rule made there under and that it is expedient in the interests of school education to take over the management of the said school, he may, after giving the Managing Committee a reasonable opportunity of showing cause against the proposed action, take over the management of the such school for a limited period not exceeding three years.

7.

However, Section 21 of the Act itself provides that nothing contained in Section 20 shall apply to any minority school and, as such, is not attracted in the present case.

8.

At the outset, respondent No. 1 to 4 have raised objection to the maintainability of the writ petition, since the principal prayers have been made against the respondent No. 5, which is a private school. 9.

If the petitioners are aggrieved by non-payment of salary by the respondent No. 5, it is submitted, the remedy of the petitioners lies elsewhere.

10.

However, such objection as to maintainability cannot be accepted, since the school is aided by the Central Government and

ninety-five percent of its funds come from aid disbursed by the Government. Moreover, the school discharges functions which tantamount to discharge of public duty, particularly in view of the provisions of the Article 21-A of the Constitution of India, which confers Right to Education on children of a particular age group. 11.

The judgments cited by learned counsel for the petitioners also acquire relevance in such context.

12.

The petitioners first place reliance on AIR 1989 SC 1607 (Anadi Mukat Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust vs. V. R. Rudani), where the Supreme Court held that where a trust is managing the affiliated college to which public money is paid as Government aid, which plays a major role in the control, maintenance and working of educational institutions, such institution discharges public function by way of imparting education to students.

13.

Learned counsel next cites the judgment reported at AIR 2005 SC 3020 (Binny Ltd. vs. V. Sadasivan) and at (2020) 14 SCC 449 (Marwari Balika Vidyala vs. Asha Srivastava), in both of which the same principle was reiterated.

14.

Hence, the objection as to maintainability of writ petition is turned down.

15.

It transpires from the records and submissions of the parties that allegations and counter-allegations of a grave nature have been exchanged between the respondent No. 1 to 4 and the respondent No. 5-school.

16.

The primary allegation against the respondent No. 5-school, is that the society managing the same has been embezzling funds. Such illegal act on the part of the respondent No. 5, it is alleged, has turned the reserve fund of the school to cipher and, as such, the respondent No. 5 is running in gross contravention of the 1973 Act and Rules. 17.

It is seen from Rules 73 (3) (a) that 'staff grant' is a recurring maintenance grant. Rule 74(1) provides that suchgrant shall be given to aided schools at the rate of ninety-five percent of the difference between the approved expenditure on the items in relation to which such grant may be made and the income from fees and such other items as may be specified by the Director.

18.

Rules 75 defines 'approved expenditure'to comprise salaries of the staff appointed with the approval of the Director to the extent of the number of posts which have been sanctioned and approved by the Director for the purpose of aid in accordance with the post-fixation rules made by the Director from time to time. The table given underneath Rule 65 of the 1973 Rules, which provides conditions for grant-in-aid, sets out the scale of minimum obligatory reserve fund to

be maintained by the aided schools, which ranges, according to category, from Rs. 5000/- to Rs. 20,000/-.

19.

Rule 64 of the said Rule provides that no school shall be granted aid unless its managing committee gives an undertaking in writing, which must contain the ingredients as stipulated in Clauses (a) to (i) of Sub-Rule (1) of Rule 64. Rule 62 envisages that every application for grant-in-aid by a school shall be made in the form as specified therein. Under Rule 63, the Administrator is empowered to cause the school to be inspected.

20.

There is no doubt that the respondent No. 5-school is one of the aided schools as determined by the Administrator. Hence, the abovementioned rules squarely apply to the respondent No. 5. A perusal of chapter VI of the Rules indicates that the same contains the scheme of grant-in-aid. Whereas an application for grant-in-aid has to be made by a school in Form II and an application for yearly assessment of grant to be made in Form III, such condition is to be fulfilled at inception of the grant and/or every year, as applicable. 21.

Rule 69 of the 1973 Rules deals with 'stoppage, reduction or suspension of grant-in-aid' and stipulates the situations in which such action may be taken by the Administrator. Clause (b) thereof provides that if the managing committee of the school fails, without any reasonable excuse, to comply with any provision of the Act or the

Rules, the Administrator can invoke the said provision to take appropriate action.

22.

However, conspicuously, the proviso to Rule 69 states that no aid shall be stopped, reduced or suspended except after giving to the managing committee of the school a reasonable opportunity of showing cause against any such proposed action. 23.

Rule 71 provides the power of the Administrator to withdraw from the reserve fund and make payment of managing committee's share of salaries and allowances. Sub-Rule (1) thereof stipulates that where the managing committee omits or fails to deposit its share of the salaries and other allowances of the employees of the school, the Administrator may authorise the Director to draw such amount from the reserve fund as would be sufficient to meet the managing committee's share of the salaries and allowances of the employees. 24.

Rule 72 specifically stipulates that where aid to any school has been stopped, reduced or suspended, and the managing committee of the school has, by such reason, omitted or failed to deposit its share of the salaries and allowances of the employees of the school, the Administrator shall pay, or cause to be paid, the managing committee's share of the salaries and allowances of the employees and authorise the Accounts Officer of the Directorate of Education, Delhi, to draw in part or in full the aid which would have been payable to the school but for such stoppage, reduction or suspension and utilize the

sum so drawn towards payment of the managing committee's share of the salaries and allowances of the employees of the school. The Accounts Officer, in case of such withdrawal of payment, is to keep separate accounts for the withdrawal and expenditure. 25.

Learned counsel for the respondent Nos. 1 to 4 seeks to advance an argument that the Administrator has not acted under Rule 69. It is submitted that the withholding of funds, allocated for aid, does not amount to stoppage, reduction or suspension of grant-in-aid, which has an element of permanence. Rather, it is contended, the disbursal of the fund has been withheld until the managing committee of the school gives satisfactory explanation for misappropriation of funds and files a Memorandum of Understanding as par the format insisted upon by the Administrator. The respondent no. 5, thus, has not been disentitled to the aid but disbursal of such aid has merely been withheld due to allegations of irregularity and misappropriation of funds against the society running the school. 26.

The said Memorandum of Understanding has been annexed to the pleadings and it is revealed that, in a hand-written endorsement on the same, the managing committee of the school has postponed signing the said MoU till certain clauses thereof were altered. 27.

However, the subtle line of distinction attempted to be drawn between withholding the disbursal on the one hand and stoppage, reduction or suspension of grant on the other does not hold water.

The nature of a 'grant' is such that the components of entitlement and disbursal are inextricably fused and have to occur in conjunction, for the term to have any meaning at all. What has been contemplated in Rule 69 is stoppage, etc. of the grant itself and not of the 'right to get grant'. Hence, such artificial line of distinction cannot be accepted by Court. In the present case, for all practical purposes, the Administration has clearly stopped/suspended grant-in-aid, without complying with the provision of Rule 69, which mandates a prior reasonable opportunity of showing cause against any of the proposed actions to be given to the managing committee of the school before stopping, releasing or suspending such aids. The proviso is couched in negative language, which makes it mandatory.

It is nobody's case that any opportunity of showing cause has been given to the managing committee on the proposed action of stopping or suspending the grant. The explanations sought by the respondent authorities from the respondent No. 5-school do not even specifically mention any course of action in terms of Rule 69, let alone give any opportunity, reasonable or otherwise, to the managing committee to show cause on such action.

28.

Although charges of defalcation have been levelled by the Administrator against the respondent No.5-school and its managing committee, through the society governing the school, neither the 1973 Act nor the 1973 Rules provide any course of action under Rule 69

without mandatory prior opportunity of show cause against the proposed actions. Hence, the action taken by the Administrator in stopping/suspending such grant is palpably de hors the Rules and the Act.

29.

An argument has been sought to be advanced by the respondent Nos. 1 to 4 as to why any further grant should be given to the school unless it complies with the law and satisfactorily answers the queries of the Administration. It is argued that, in view of noncompliance of the provisions of the Act and non-filing of the required undertaking as per Rule 64, Sub-Rule (2) of Rule 64 can be invoked by the Administrator, which renders the school liable to be removed from the grant-in-aid list for breach of any condition stipulated in Sub-Rule

(1) of Rule 64. However, no such action has yet been taken by the respondent authorities by following due course of law. 30.

The course of action open before the Administrator is as follows: 31.

If the management stops depositing its share of five percent but continues to run the school, the Administrator may, under Rule 71, withdraw from the reserve fund and make payment of the managing committee's share of salaries and allowances. 32.

However, in the present case, respondent No. 1 to 4 alleged that the school has maintained no reserve fund at all. Such stand is also

corroborated by the school which sought for two years' time to enhance its income.

33.

In case sufficient amount of money is not there in the reserve fund, under Rule 72, it is the Administrator who is to disburse such amount under the head of salaries and allowances of the staff of the school. For such purpose, the Administrator is empowered under Rule 72 to pay or cause to be paid the managing committee's share and authorise the Accounts Officer of the Directorate of Education, Delhi, to draw in part or in full the aid which would have been payable to the school but for such stoppage, reduction and suspension and utilize the sum so drawn towards payment of the managing committee's share of the salaries and allowances of the employees of the school. The only statutory mandate is that where such withdrawal and payment is made by the Accounts Officer, he shall keep separate accounts for such withdrawal and expenditure. 34.

Apart from stopping or suspending the grant-in-aid to the school in the event of any violation of the 1973 Act or Rules by the school and subsequent direct disbursal of salaries and allowances as envisaged in Rule 72, the recalcitrant school may also be penalized by removing its name from the grant-in-aid list. 35.

A more serious course of action which can be taken by the Administrator thereafter is suspension or withdrawal of recognition of the school itself within the contemplation of Rule 56 (1) of the 1973

Rules, under which, if a school ceases to fulfill any requirement of the Act or any of the conditionsas specified in Rule 50 (Conditions for Recognition) or fails to provide any facilities as provided in Rule 51, the appropriate authority may, only after giving the school a reasonable opportunity of showing cause against the proposed action, withdraw, for reason to be recorded in writing, the recognition from the school.

36.

In the present case, the Administrator acted palpably without jurisdiction and de hors the law in stopping/suspending the grant-inaid all on a sudden without complying with the proviso to Rule 69, which mandates prior opportunity of show cause against such proposed action to be given to the managing committee. 37.

Thus, in terms of Rule 72, since there is no reserve fund as per the allegation of the Administrator to comply with Rule 71, the Administrator is to take necessary action for direct disbursal of the salaries and allowances of the school employees, teaching and/or nonteaching, by adopting the recourse provided in Rule 72. 38.

In the present case, it is an admitted position that the respondent no. 5-school has not been able to disburse the salaries and allowances of the teacher. Irrespective of the allegations and the counter-allegations exchanged between the Administration and the school, the teachers of the school cannot be made scapegoats without any fault on their part. Rather, it is commendable that the teachers

have continued discharging their duties for the benefit of the students in larger interest, considering their future, without any income for a considerable period after April, 2021.

39.

In such circumstances, the only recourse open to the Administrator is to comply with Rule 72 and disburse the salaries and allowances of the school staff.

40.

As regards the question of the reliefs prayed in the writ petition being primarily against the respondent No. 5, such objection cannot be sustained, since the non-payment of salary is a direct consequence of the action taken by the respondent No. 1 to 4, who are public authorities and come within the contemplation of 'State' as envisaged in Article 12 of the Constitution of India.

41.

Moreover, the respondent No. 5-school is a government-aided school and ninety-five percent of its funds come from such aid, for the purpose of discharge of duties which involve a public element inasmuch as imparting education to a minority community is concerned.

42.

Thus, WPA/49/2022 is allowed, thereby directing the respondent nos. 1 and 4, that is, the Lieutenant Governor, Andaman and Nicobar Islands and the Directorate of Education, Andaman and Nicobar Administration to pay or cause to be paid the entire amount of arrears of salaries and allowances of the employees of the

respondent No. 5-school including both the components, that is, the Administrator's share and the managing committee's share thereof, within a month from date to the salary accounts of the petitioners. Such payment will consist of the balance amount after deducting the amounts already deposited in terms of the interim order passed in the present writ petition.

43.

It will be open to the petitioners to withdraw their respective salaries from such deposits.

44.

It is however, made clear that nothing in this order shall prevent the respondent No. 4 to undertake appropriate inquiry and to take measures, as discussed in the orders, against the respondent No. 5school's management within the contemplation of the 1973 Rules. However, till any such step is taken, the respondent Nos. 1 to 4 shall ensure that the Administrator keeps on disbursing its own share, and that of the management committee, of the salaries and the allowances of the employees of the respondent No. 5-school regularly. It will be open to the petitioners to withdraw their current salaries from their salary accounts from the said deposits as well. 45.

This order has been passed without prejudice to the rights and contentions of the respondent No. 1 to 4 and respondent No. 5 to take appropriate steps/defence in connection with the allegations levelled against the respondent No. 5. It is made clear that the above arrangement shall continue till any action of permanent nature is

taken against the respondent No. 5-school, if at all, in due course of law and/or compliance of the 1973 Rules by the respondent No. 5. 46.

The connected application being CAN/1/2022 is disposed of accordingly.

47.

There will be, no order as to costs.

48.

Urgent photostat certified copy of this order be supplied to the respective parties upon compliance of usual formalities. (SABYASACHI BHATTACHARYYA, J.)