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2010 DIGILAW 229 (GAU)

Dipankar Dey v. State of Assam

2010-03-30

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. The subject matter of challenge in this revision petition is the decision of the concerned school authorities to start classes of the Silchar Collegiate School in single shift at 8:45 AM and to change the existing timing from 7:20 AM to 8:45 AM for KG-I to Class-I and from 10:30 AM in respect of Class-II to Class-X with effect from 1.1.2010. 2. I have heard Mr. A.K. Goswami, learned Senior Counsel assisted by Ms. P. Sarma, learned Counsel for the Petitioners and Mr. N. Choudhury along with Mr. S.P. Choudhury, learned counsel appearing on behalf of Respondent Nos. 3, 4 and 5 and Mr. S.C. Biswas, learned counsel for Respondent No. 6. Also heard Mr. M.K. Misra, learned Standing Counsel, Education for the official Respondents. 3. Shorn off details necessary facts for the purpose of disposal of the writ petition are as follows: The Silchar Collegiate School which was established in 1974 runs on the donations of the guardians and on the fees collected from the students. At present, there are 2085 students in its roll. The school conducts classes from KG-I to Class-X. The classes KG-I to Class-1 starts at 7:20 AM and get over at 10:00 AM and the classes-of Class-II to Class-X starts at 10:30 AM. Classes of Class-II and Class-III get over at 2:20 PM and classes of Class-IV to Class-X get over at 3:30 PM on all other days except Saturday, on which day the classes get over at 1:15 PM. The classes of KG-I to Class-I are treated as morning shift and classes of Class-II to Class-X treated as day shift and such timings have been maintained from the date of inception of the School. Under the Constitution of the School, the general body comprising of legal guardians of the students on roll is the supreme body in running the affairs of the school. There is a society known as guardians society which is formed by guardians of the students of the school and is registered under the Societies Registration Act. That apart, the Managing Committee of the School is constituted for the purpose of management of the school from the legal guardians/parents of the students on roll except the Secretary and the Teachers' representatives in the manner provided in the constitution of the school. The managing committee is the next supreme body to the general body. That apart, the Managing Committee of the School is constituted for the purpose of management of the school from the legal guardians/parents of the students on roll except the Secretary and the Teachers' representatives in the manner provided in the constitution of the school. The managing committee is the next supreme body to the general body. Under the constitution, the managing body is responsible for proper and smooth conduct of the aforesaid school and provided that it has got the right to issue necessary instruction to the Headmaster/Secretary of the School and also right to see whether the instruction are duly complied with. There is a provision for holding general body meeting of the guardians by way of requisition made by 25% guardians of the enrolled strength of students or 200 members whichever is less, eligible to vote, who may requisition such a meeting of the general body specifying the reasons thereof It shall be an obligation of the Secretary of the Managing Committee to convene such a general meeting on requisition within 30 days from the date of such requisition. The Managing Committee of the School in its meeting held on 4.10.09 discussed about shifting of the school timing from 8:30 AM to 9:00 AM and resolved to start class in a single shift from 8:45 AM with effect from 1.1.2010. However, the Secretary of the School Society of Guardians vide his letter dated 6.11.09 intimated the President of the managing committee that the decision to fix the new timing of the school is required to be finalized in a general body meeting as the matter is a controversial one. A requisition for convening the general body of the guardians was also made and requisition letter was served upon the President of the managing committee, a copy of which is annexed as Annexure-5. But no general body meeting was convened as requisitioned and vide resolution No. 1 in the meeting of the managing committee adopted on 16.11.09 the school timing was changed as indicated above and to hold the classes in a single shift. 4. Mr. Goswami, learned Senior Counsel appearing for the Petitioners submits that the change of timing is required to be discussed in the general body of the school and after considering the same only necessary resolution is to be adopted by the managing committee. 4. Mr. Goswami, learned Senior Counsel appearing for the Petitioners submits that the change of timing is required to be discussed in the general body of the school and after considering the same only necessary resolution is to be adopted by the managing committee. On the face of the objection raised by the Secretary of the Guardians Society vide his letter dated 6.11.09, the impugned decision is not in the interest of the students and not as per provisions of the constitution of the school. Learned senior counsel further contends that earlier timing was suitable for the students, particularly for KG and Class-II for the reason amongst Ors. that they got sufficient time in the intervening period which is necessary for them for indulging themselves in other physical and co-curricular activities for their development of physical and mental function. Accordingly, it is submitted, the matter is required to be discussed before the general body meeting of the guardians and the decision that may be taken in such a meeting of the general body should be allowed to prevail. 5. Mr. N. Choudhury, learned Counsel appearing for the Respondent Nos. 3, 4 and 5, however, contends that this petition being against a privately managed school is not maintainable. In support of his contention, the learned Counsel has referred to the decisions reported in 2008 (1) GLT 615: Mubarak Hussain and Anr. v. State of Assam and Ors. (2008) 4 GLT 951: Nripendra Kumar Sarma v. Bongaigaon Refinery and Petrochemicals Ltd. and Ors. and also referred the case of The Managing Committee, Silchar Collegiate School v. Debipada Bhattacharjee and Ors. reported in (1994) 1 GLR 202. Learned Counsel further contends that decision of the managing committee was adopted on the basis of the positive signal to that effect received from the guardians of the students through the society of guardians and for greater interest of all concerned. The other limb of argument is that some objections were raised by the residents of the localities as regards the existing timing of the school and on such consideration the decision to change the school timing was taken. The other limb of argument is that some objections were raised by the residents of the localities as regards the existing timing of the school and on such consideration the decision to change the school timing was taken. Further contention is that as per prevalent accommodation of the school as exists on date, the school is in a position to impart education in a single shift and that the decision of change of timing was taken in tune with the guidelines of SEBA which provides that the school timing in High School and Higher Secondary Schools is 9:30 AM for all classes and in Saturday would be half day. 6. Mr. Misra, learned Standing Counsel, Education has also endorsed the view made by Mr. Choudhury as regards the maintainability of the writ petition. Teamed Standing Counsel submits on merit that as regards the school timing is concerned, the school being a private school, the State Respondents has no control over the same. 7. I have considered the statements made by the learned Counsel as regards the maintainability of the writ petition. Admittedly, school in question is a private school being nm from the financial assistance of the guardians and the State Government has no financial control over the same. On the other hand, Managing Committee of the School has been approved by concerned Inspector of Schools. At a first glance, it appears that the school being purely a private institution, the writ petition against the school is not maintainable. But on a deeper consideration, it is to be found that the challenge made in this writ petition is not against any individual and/or against any individual action but is against the decision affecting certain interest having general importance for the society i.e. imparting of education to the minor students. Education of students within the age group of 6 to 14 years is a fundamental right under the Constitution of India and hence it is the obligation of the State not to argue that such right is not hampered in any manner over such right by any authority, whether it is public or private. 8. Education of students within the age group of 6 to 14 years is a fundamental right under the Constitution of India and hence it is the obligation of the State not to argue that such right is not hampered in any manner over such right by any authority, whether it is public or private. 8. It is the case of Debipada Bhattacharjee (supra) where the present school is the Appellant, the Division Bench of this Court in Writ Appeal No. 10/92 referring to earlier decisions of the Apex Court held that a private institution, whether or not it receives grants-in-aid, performs or discharges public duty in so far as it concerns imparting of education and the question whether such an institution will be amenable to writ jurisdiction depends upon the nature of the right-duty relationship between the institution and other persons. In that case, the Petitioner challenged the action of the Managing Committee of the School reversing from the post of vice principal to the substantive post of Assistant Teacher and the writ petition filed by him was allowed. But in appeal, the Division Bench held that the action challenged in the writ petition being related to the law of master and servant in respect of a private institution, the remedy is not available under the writ jurisdiction and the petition is not maintainable. 9. In the case of Mubarak Hussain (supra) the challenge is against the decision of the managing committee of a venture school which is not a statutory body terminated the service of the Petitioner and it was held that the decision of termination of service of the Petitioner was purely a private affairs and school not having any control of the State Government or its authorities and is action, not to speak of in the realm of all pervasiveness. The managing committee not being an authority or even instrumentality of the State is not amenable to writ jurisdiction under Article 226 of the Constitution of India. 10. In the case of Nripendra Kumar Sarma (supra), the challenge was made against the action of the Delhi Public School for not providing appointment in the post of accountant to an employee with higher scale of pay, has approached the Court by filing the writ petition. 10. In the case of Nripendra Kumar Sarma (supra), the challenge was made against the action of the Delhi Public School for not providing appointment in the post of accountant to an employee with higher scale of pay, has approached the Court by filing the writ petition. Surveying the various decision of the Apex Court, the learned Single Judge giving to the facts of the case held that although not denying the functions and duties of public nature by the Delhi Public School emphasized that the spreading of education, though undoubtedly connected with public interest, is an activity where there is a large number of private players. Obviously, the extraordinary jurisdiction of this Court cannot be expected to embrace the actions of all such bodies merely because they are engaged in the field of imparting education. Incident of the aforesaid case is also related to service condition of the school and considering the same, the writ petition was held not to be maintainable. 11. The School in question is affiliated to the Assam Board of Secondary Education. The syllabus of the school in the secondary stage as prescribed by SEBA, the school final examination is also conducted by SEBA. All norms of procedures, restrictions and formalities of SEBA is being adhere to by the school. Imparting of education to the students being an obligation of the State, the school authorities is taking the said responsibility which is undoubtedly a public function. The non-statutory body is exercising the powers in accordance with the SEBA regulations, guidelines and procedures and thus it exercises public function for public interest and public good. That apart the majority of the students falling within the age group of 6 to 14 years have fundamental right recognized by the Constitution of India under Article 21A. 12. Even in a grievance categorized as private law wrong where wrong has some significance to public law element, the remedy under public law action may be pursued. In the case of S. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. reported in (1997) 3 SCC 571 , the Apex Court observed that the State has an obligation to provide facilities and opportunities to the people to avail the right to education. In the case of S. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. reported in (1997) 3 SCC 571 , the Apex Court observed that the State has an obligation to provide facilities and opportunities to the people to avail the right to education. The private institutions cater to the need of providing educational opportunities an element of Public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226, the jurisdiction part is very wide. The Apex Court further observed that it would be a different position, if the remedy is a private law remedy and accordingly the writ petition was held to be maintainable and writ was issued as prayed by the Petitioners. In the instant case, the action challenged as indicated above is in the realm of public law relating to imparting of education to minor children having fundamental right to get such education at the lands of the State. Adverse school timing would undoubtedly have deep and pervasive consequences upon the education of the minors and the authority would accordingly be required to take a consensus decision while it proposes to chaise the school timing now in force which is continuing for last 36 years, upon consideration of all pros and cons of the issue including the suggestion of the general body which is the supreme in the hierarchy of administration of the school. Upon considering as discussed above, I am not inclined to accept the objection challenging the maintainability of the writ petition, raised by Mr. Choudhury. 13. Turning to other point, from the materials made available before me, it is clear that the decision to change the timing of the school was taken by the concerned Respondent authorities which is objected by guardians as well as the Teachers and the Staff Association/respondent No. 6. Although Mr. Choudhury has strenuously urged that the impugned resolution was adopted by the Managing Committee of the School in its meeting dated 16.11.09 and the same considered the views of the society of guardians adopted in its executive committee meeting dated 13.11.09 before adopting such resolution. There was no general body meeting of the guardians. The decision of which was emphasized in the communication dated 6.11.09 by the Secretary of the Society of guardians. There was no general body meeting of the guardians. The decision of which was emphasized in the communication dated 6.11.09 by the Secretary of the Society of guardians. Incidentally, although counter affidavit filed on behalf of Respondent Nos.3, 4 and 5 is sworn by the same person who represented the communication dated 16.11.09. There is no vesper about the said letter accordingly the said communication wherein justification has been laid down for taking a decision in the general body meeting of the guardians. 14. Mr. Goswami, learned senior counsel has taken a categorical stands that if a decision to be taken by the general body of guardians, for which a requisition has already been made, to change the school timing, the decision of the general body would have a binding affect on all concerned including the Petitioners. 15. From the materials available on record and from the pleadings of the parties, I find that the Managing Committee of the School adopted a decision without having views of the general body although it is stated to have taken in the impugned resolution that it considered the resolution of the executive committee meeting of the society of guardians dated 13.11.09. But as indicated above, the Secretary of the Guardians Society himself expressed his view that since the matter is controversial one, the decision is to be taken in general body meeting. Such a decision ought to have been allowed to take before adopting the impugned resolution. 16. In view of what has been discussed above, the writ petition is disposed of directing the Respondent authorities, particularly, the President of the managing committee to convene a meeting of the general body which is the supreme body, as requisitioned earlier, within a period of 6(six) weeks from today and the decision that may be adopted in the said general body meeting would hold the field as regards the timing of the school. Till such a decision is taken, the timing as continued till today shall prevail. 17. With the aforesaid observations and directions, this writ petition stands finally disposed of. 18. No costs. Petition disposed of.