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2017 DIGILAW 1952 (JHR)

St. Stephens School v. State of Jharkhand

2017-11-14

RAJESH SHANKAR

body2017
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the letter contained in memo No. 60 dated 10.1.2013, issued by the Director (Secondary Education)-cum-Joint Secretary, Human Resources Development Department, Government of Jharkhand (respondent No. 2), whereby no objection certificate of the petitioner earlier granted vide Directorate Letter No. 2524 dated 7.10.2004 has been cancelled and recommendation has been made to the CBSE to terminate the affiliation of the petitioner-School. The factual background of the case as stated in the present writ petition is that the petitioner-School is situated on the portion of the land pertaining to holding No. 209 measuring total area of 19.2 acres in village Cantonment P.S. and District-Hazaribagh having nature of Khas Mahal land. The land was settled to Doublin University Mission (Now Chotanagpur Diocesan Trust Association) through a registered lease deed in the year 1918. The lease was renewed in the year 1948 for further ninety years subject to renewal in every thirty years. The petitioner through its Secretary requested the Trust to establish an English medium school on the portion of the leasehold land of the Trust which was accepted, and the school was established. After 30 years, the Trust applied for renewal of lease vide Renewal Case No. 115/77-78, but the Deputy Commissioner, Hazaribagh (respondent No. 3) passed an order of resumption of 17.57 acres of land and only 1.45 acres of the leasehold land was left out for the use of the petitioner. The Deputy Commissioner, Hazaribagh (respondent No. 3) directed the petitioner to deposit an amount of Rs. 9,37,500/- as Salami for the land measuring 0.62 1/2 acres on account of the same being used for commercial purposes. The petitioner, thereafter, filed Khas Mahal Revision Case No. 10 of 1997 before the Divisional Commissioner, North Chotanagpur Division, Hazaribagh which was disposed of vide order dated 25.9.1999 by quashing the order of resumption passed by the respondent No. 3 and the matter was remanded for fresh decision in the matter. When the respondent No. 3 did not comply the order of the Divisional Commissioner, the petitioner filed writ petition being W.P.C. No. 2353 of 2003 which is still sub-judice before this court. When the respondent No. 3 did not comply the order of the Divisional Commissioner, the petitioner filed writ petition being W.P.C. No. 2353 of 2003 which is still sub-judice before this court. Thereafter, the respondent-State filed appeal before the Member, Board of Revenue being Case No. 14 of 2006 which was disposed of on 17.8.2007 whereby the order of the Divisional Commissioner was set aside and the matter was remanded to the respondent No. 3 for deciding the matter afresh. During the pendency of the renewal application of the land, the petitioner applied for no objection certificate before the Director, Secondary Education Department, Government of Jharkhand (respondent No. 2) which was duly granted vide memo No. 2524 dated 7.10.2004 and accordingly, the affiliation to the petitioner-school was also granted by the CBSE for the students of Class-X for appearing in the Board Examination. Suddenly, a letter contained in memo No. 60 dated 10.1.2013 was issued by the respondent No. 2, whereby the no objection certificate granted to the petitioner vide memo No. 2524 dated 7.10.2004 was cancelled and a recommendation was made to the CBSE to terminate the affiliation of the petitioner school. During the pendency of this writ petition, the CBSE withdrew the affiliation of the petitioner vide letter dated 28.2.2013, however in view of the order dated 8.2.2013 passed by this court, the affiliation was resumed vide letter No. CBSE/Affli./3430193/2013/544252 dated 2.4.2013. Further, vide order dated 6.4.2013, the provisional affiliation of the petitioner upto Secondary School (Class-X) was extended for further five years w.e.f. 1.4.2014 to 31.3.2019. 2. The learned senior counsel appearing on behalf of the petitioner submits that the order of cancellation of the no objection certificate has been passed in violation of the principle of natural justice, as no show cause notice has been served to the petitioner before passing the impugned order. It is further submitted that the matter of renewal of the lease of the land is still sub-judice before this court and as such, the no objection certificate granted in favour of the petitioner cannot be cancelled. It is also submitted that due to the arbitrary action of the respondent, the future of about 1400 students including teaching and non-teaching staffs of the school is in jeopardy. 3. It is also submitted that due to the arbitrary action of the respondent, the future of about 1400 students including teaching and non-teaching staffs of the school is in jeopardy. 3. The learned counsel appearing on behalf of the State-respondent submits that at the time of enquiry for renewal of the lease, it was found that out of the total leased area, about 17.57 acres of land is unused and as such the order for resumption of the said land was passed. However, 1.45 acres of land which was being used for the school and residence of principal was ordered to be renewed with effect from 1.4.1978 till 31.3.2008, but leased deed was not executed as never applied by the lessee. It is further submitted that the no objection certificate for affiliation was taken by the petitioner subjecting fraud and as such the same has been cancelled. It is further submitted that in an inquiry, it was found that Smt. Kalpana Bara and Anita Dayal jointly purchased land of Village-Nawada, Pargana-Babhanab, P.S. No. 118, P.S. Katkamsandi, Dist.-Hazaribagh measuring area of 2.60 acres and thereafter Kalpana Bara and Anita Dayal executed a lease deed in favour of the petitioner-school wherein the description of the land has been changed as Village-Cantonment, Pargana-Champa upon which the petitioner-school is running. It is further submitted that on the basis of the inquiry, it was resolved that the No Objection Certificate has been taken by showing a land which does not belong to the petitioner and as such its No Objection Certificate may be cancelled and recommendation for cancellation of affiliation of the school may be issued. 4. Heard the learned counsel for the parties and perused the materials available on record. It appears that the land on which the school is running is a Khas Mahal land and the matter for renewal of the lease is pending before the Deputy Commissioner, Hazaribagh (respondent No. 3). A writ petition being W.P.C. No. 2353 of 2003 on the said issue is also pending before this court. The respondent No. 2 passed the order of cancellation of no objection certificate granted in favour of the petitioner on the basis of an inquiry conducted by the respondents. A writ petition being W.P.C. No. 2353 of 2003 on the said issue is also pending before this court. The respondent No. 2 passed the order of cancellation of no objection certificate granted in favour of the petitioner on the basis of an inquiry conducted by the respondents. Admittedly, the respondent No. 2 did not issue any show cause notice to the petitioner before passing the impugned order so as to afford sufficient opportunity to the petitioner to respond to the allegations levelled against it. 5. The Hon'ble Supreme Court in the case of Gulzar Singh vs. Sub-Divisional Magistrate & Anr. reported in (1999) 3 SCC 107 in para 3 held as under:-- "3. It is clear from the facts on record that prior to the cancellation of the Scheduled Caste certificate by the impugned order dated 3.6.1997, no show-cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Caste certificate, certain rights accrued to the appellant. If this certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Caste certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken." 6. Further, in the case of Gorkha Security Services vs. Govt. (NCT of Delhi), reported in (2014) 9 SCC 105 [: 2014 (4) JUR (SC) 305] held as follows:-- 21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action. 22. The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order to fulfill the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz.: (i) The material/grounds to be stated which according to the department necessitates an action; (ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit. We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement. 29. No doubt, rules of natural justice are not embodied rules nor can they be lifted to the position of fundamental rights. However, their aim is to secure justice and to prevent miscarriage of justice. It is now well-established proposition of law that unless a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, in exercise of power prejudicially affecting another must be in conformity with the rules of natural justice. 7. However, their aim is to secure justice and to prevent miscarriage of justice. It is now well-established proposition of law that unless a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, in exercise of power prejudicially affecting another must be in conformity with the rules of natural justice. 7. In the aforesaid judgments, the Hon'ble Supreme Court held that the fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him/her which has to be met. This would require furnishing the details of alleged breaches and defaults a person has committed, so that he/she gets an opportunity to rebut the same. It has further been held that unless a statutory provision excludes the application of observance of natural justice, any exercise of power prejudicially affecting someone's right must be exercised in conformity with the principles of natural justice. 8. In the present case also, NOC was earlier given in favour of the petitioner and thereafter the same was cancelled by which the right already accrued to the petitioner has been taken away, thus, the same could not have been passed without following the principles of natural justice. 9. For the aforesaid reason, the letter contained in memo No. 60 dated 10.1.2013 issued by the Director (Secondary Education)-cum-Joint Secretary, Human Resources Development Department, Government of Jharkhand (respondent No. 2) is hereby quashed with a direction to the respondent No. 2 to serve show cause to the petitioner setting out the allegations levelled against it and decide the matter afresh by passing a reasoned and speaking order affording due opportunity of hearing to the petitioner within a period of three months from the date of production/receipt of a copy of this order. The writ petition is accordingly disposed of.