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2018 DIGILAW 267 (CAL)

Sarada Seva Trust v. State of West Bengal

2018-02-16

SAMAPTI CHATTERJEE

body2018
JUDGMENT : SAMAPTI CHATTERJEE, J. 1. The following issues to be determined in the present writ petition are :- (i) Whether the District Inspector of School (P.E.) Uttar Dinajpur , respondent no.5 herein travelled beyond his jurisdiction in issuing the impugned order dated 10th April, 2017 thereby directing the petitioner school to close the same in terms of Memo No.323-SE (Law) dated 15th March, 2012; (ii) Whether the State Level Committee, the respondent no.3 herein is the competent authority to grant or refuse ‘No Objection Certificate’ (NOC) under West Bengal Right of Children to Free and Compulsory Education Act, 2009 and the Rules framed there under; 2. The fact of the case in a nutshell is as follows : The petitioner trust runs a school called “Sarada Shishu Teertha”, at Village-Karandighi, District-Uttar Dinajpur. The school has been running prior to the West Bengal Right of Children to Free and Compulsory Education Rules, coming into force in March, 2012. In compliance of Rules 10 (1) and (2) of the said Rules, the school applied for ‘No. Objection Certificate’ to the District Inspector of Schools (P.E.) Uttar Dinajpur being the respondent no.5. The respondent no.5 has issued a memo dated 10th April, 2017 holding that the said school is not fit for recommendation for No Objection Certificate from the Competent authority and since the school cannot function without obtaining such a certificate of recognition from the Competent Authority under Section 18 (1) of the RTE Act, 2009, the school must close down with immediate effect. Assailing the impugned order dated 10th April, 2017 issued by the District Inspector of Schools (P.E) Uttar Dinajpur the petitioner school filed the present writ petition. This Court on 12th May, 2017 after being prima facie satisfied has been pleased to grant interim protection thereby staying the portion of the order dated 10th April, 2017. This Court also directed the parties to file affidavit-in-opposition and affidavit-in-reply. Accordingly the respondent no.1 filed the affidavit-in-opposition and the petitioner school also filed affidavit-in-reply. Submissions of the Learned Advocates 3. Mr. Subir Sanyal learned Advocate appearing for the school authority the petitioner herein, strongly argued that the concerned District Inspector of School has no authority to pass the impugned order of closer of the said school. 4. Mr. Accordingly the respondent no.1 filed the affidavit-in-opposition and the petitioner school also filed affidavit-in-reply. Submissions of the Learned Advocates 3. Mr. Subir Sanyal learned Advocate appearing for the school authority the petitioner herein, strongly argued that the concerned District Inspector of School has no authority to pass the impugned order of closer of the said school. 4. Mr. Sanyal further emphasized that as per Schedule 1 of Rule 10 of the said Rule the petitioner had made an application in proper Form for recognition of the institution as an unaided one. The said application was also duly submitted to the appropriate authority. 5. Mr. Sanyal further contended that in response to the queries made by the concerned District Inspector of Schools, the school authority time to time submitted all documents. Surprisingly on 8th March, 2017 the petitioner school was called to appear in a hearing schedule to be held on 9th March, 2017. Accordingly the petitioner appeared in the said hearing. But suddenly by the impugned order the said District Inspector of Schools, respondent no.5 herein directed the school authority to close down the said school thus traveling beyond its jurisdiction as prescribed by the said rules. 6. Mr. Sanyal further strongly submitted that the District Inspector of Schools has no authority to decide the point of issuance of ‘No Objection’. He further contended that it is the State Level Committee who has power to issue ‘No Objection Certificate’ or to refuse. But in no manner the concerned District Inspector of School is empowered to direct the petitioner institution to close down, thereby rejecting the issuance of ‘No Objection Certificate’. In this connection part of Rule 10 of The Right of Children to Free and Compulsory Education Act and Rules is quoted below :- “Rule-10-Authority, form and manner of making applications for certificate of recognition under sub-section (1) of Section 18 and manner of giving bearing under second proviso to clause (3) of section 18-(1) Any unaffiliated and/or un-recognised unaided school mentioned in item (iv) of clause (n) of section 2 established before commencement, and every such category of school proposed to be established after commencement, of these rules, shall apply in the Form appended to the Schedule I for a certificate of recognition under sub-section (2) of section 18 within 3 months from the date of coming into force of these rules. (2) All schools falling under sub-rule (1), shall apply for a certificate of recognition under section 18 to the concerned District Inspector of Schools (Secondary Education) or to the District Inspector of Schools (Primary Education), as the case may be, under whose jurisdiction the school is to be set up, irrespective of Board to which such school intends to get affiliated. Sun an application may directly be made to the State Government online through its official website.www. wbsed.gov.in and processing of such online application shall be done by the State Government. (3) The concerned District-Inspector of Schools or any officer authorized by him, shall, within forty-give working days from the receipt of the application either directly or from the State level through online method, hold a preliminary hearing of the applicant school and during the preliminary hearing, such school shall be required to produce the original copies of all documents for verifgi9cation along with duly receipt copy of the treasury Challan showing deposit of processing charges as mentioned in sub-rule (4). The date of bearing shall be intimated to applicant school while accepting the application in the receipt itself. No separate notice shall be given. (4) In case of online submission of application the preliminary hearing may be held at the State level as per procedure to be notified as per sub-rule (2) in which case the concerned District Inspector of Schools need not conduct the preliminary hearing. (5) Each application shall be accompanied by a treasury |Challan (non-refundable for the amount mentioned in column (2) of the said table, as the case may be : Table Sl. No. Category of school Amount (in Rs.) (1) (2) (3) 1. For Primary School in rural Areas Rs.3,000/- 2. For Primary School in urban Areas Rs. 5000/- 3. For Upper Primary in rural Areas Rs. 7000/- 4. For Upper Primary in urban Areas Rs. 10000/- (6) Where the applicant school fails to submit the fees mentioned above through treasury Challan or fails to produce any of the documents to be produced as per the Schedule I within 15 (fifteen) working days from the date of submission of application, the application of such school shall be summarily rejected by the concerned District Inspector of Schools or any officer authorized in this behalf without taking further hearing. (7) The District Level Inspection Team shall enquire the applicant school who submits the documents as mentioned above within the prescribed time limit Explanation-For the purpose of this rule, the State Government shall constitute a committee in the district level known as District Level Inspection Team with the following representatives mentioned in column (2) to Table below to conduct an enquire : Table Sl. No. Name of the representative No. of representative (1) (2) (3) 1. The District Inspector of Schools (SE)/(PE) of the concerned District or his nominated representative (Convenor). 1 2. Nominee of the West Bengal board of Secondary Education 1 3. Nominee of the Chairman, district Primary School Council of the concerned District 1 4. Nominee of the Madrasah Board 1 Total representative 4 7. Mr. Sanyal further contended that as per rule the District Inspector of School shall hold a preliminary hearing where only verification of documents submitted by the applicant school will be done. The D.I. would have the power to reject the application summarily only if the applicant school fails to submit the prescribed fees by treasury challan or fails to produce any of the documents to be produced as per schedule within fifteen working days from the date of submission of application. Otherwise, the district level inspection team would make an enquiry into the affairs of the applicant’s school and submit a report to the Director of School Education, West Bengal who will place such report before the State Level Committee for consideration of granting ‘No Objection Certificate’ in favour of the applicant school. 8. Mr. Sanyal further vehemently urged that till date no committee has been formed as per the under quoted Rules 9, 10, 11, 12, 13 and 14 of the said Rule. “(9)-The Director of School Education shall, within 30 days from the date of submission of report by the District Level Inspection Team, place it before the State Level Committee for consideration for granting a ‘No Objection Certificate’ in favour of the applicant school seeking affiliation under any Board located in West Bengal or outside, as the case may be. “(9)-The Director of School Education shall, within 30 days from the date of submission of report by the District Level Inspection Team, place it before the State Level Committee for consideration for granting a ‘No Objection Certificate’ in favour of the applicant school seeking affiliation under any Board located in West Bengal or outside, as the case may be. Explanation-For purpose of this rule, the expression “State Level Committee” means a State Level Committee on Recognition or Affiliation of Schools constituted by the State Government for granting a ‘No Objection Certificate’ in respect of recognition or affiliation to the applicant school, consisting of the following members mentioned in column (2) of the Table below:- Table Sl. No. Name of the members of the State Level Committee Designation (1) (2) (3) 1. Director of School Education, West Bengal Chairperson 2. Joint Secretary, School Education Department, looking after secondary education or any other officer not below the rank of Joint Secretary duly authorized by the Secretary, School Education Department Member 3. Secretary, West Bengal board of Primary Education Member 4. Secretary, West Bengal board of Secondary Education Member 5. Chairperson, Rabindra Mukta Vidyalaya Member 6. State Project Director, Sarba Siksha Mission or his representative not below the rank of Additional State Project Director Member 7. One Deputy director of School Education, West Bengal to be duly nominated by the Director of School Education Member convenor 8. Secretary Madrasah Board or his representative Member 9. Representative of the Board outside West Bengal under which the school seeks affiliation, if required Member (10) The State Level committee shall meet at least once in every English Calendar months and shall dispose of the applications along with the report of the District Inspection Team under sub-rule (8) of the preceding month of such English Calendar month. While considering the applications along with the report, the State Level Committee shall hear the applicant or his/their authorized representative as well as the concerned District Inspector of Schools. (11) If it is of the opinion of the State Level Committee that the applicant school has complied with all the conditions and requirements for recognition the State Level Committee shall within 15 days from the date of the hearing, recommend ‘No Objection Certificate’ in favour of the applicant school seeking affiliation under any Board located in West Bengal or outside, as the case may be. This shall be construed as the Certificate of Recognition for all purposes. (12) In case the State Level Committee is of the opinion that the applicant school does not fulfil all the conditions and requirements for recognition as laid down in the Form to Schedule I, the State Level Committee shall provide further chance of three months to the applicant school to make good the deficiency pointed out by the Committee. The decision of the committee shall be communicated to the applicant school within seven days from the date of hearing. (13) In case the applicant school is able to make good the deficiency and communicates the same by a written application to the District Inspector of Schools concerned within the said three months from the date of decision of the Committee, the District Level Inspection Team shall again inspect the school within one month from the date of such second inspection and on receipt of such report, the State Level Committee shall again convene within 30 days from the date of receipt of such report and also after give hearing to the applicant school and the concerned District Inspector of Schools and may recommend ‘No Objection Certificate’ in favour of the applicant school seeking affiliation under any Board located in West Bengal or outside, as the case may be, in the manner as stated in rule 10. In case the Committee is till of the opinion that the school does not fulfil the criteria for recognition it may reject the case as per sub-rule 14. (14) In case the applicant school fails to comply with all the conditions and requirements for recognition as laid down in the Form of Schedule I within 3 months from the date of first order of the State Level committee, the State Level Committee shall reject the application of the applicant school and its processing fee deposited shall be forfeited.” 9. Mr. Sanyal also emphasized that Section 23 (2) of the said Act has been amended by the Parliament on 10th August, 2017 for the existing teachers who at the commencement of this Act do not posses minimum qualification as laid down in Sub Section (1) shall acquire minimum qualification within 1st April, 2019. Some portion of the said amendment is quoted below : “1. Some portion of the said amendment is quoted below : “1. (1) This Act may be called the Right of Children to Free and compulsory Education (Amendment) Act, 2017-Short title and commencement (2) It shall be deemed to have come into force on the 1st day of April, 2015. 2. In the Right of Children to Free and Compulsory Education Act, 2009, in section23, in sub-section (2), after the proviso, the following proviso shall be inserted, namely :- Amendment of Section 23. “Provided further that every teacher appointed or in position as on the 31st March, 2015 who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and compulsory Education (Amendment) Act, 2017.” 10. Mr. Sanyal further submitted that the said amendment came into force on and from 10th August, 2017 but effect was given from 1st April, 2015 retrospectively. 11. Mr. Sanyal further vehemently urged that concerned District Inspector of School after being dictated by the Commissioner of School Education, the respondent no.4 herein, issued the letter of hearing and by the impugned order directed the petitioner school to close down the same as petitioner school is not entitled to obtain ‘No Objection Certificate’, this direction is wholly beyond the jurisdiction. 12. Before parting with the argument Mr. Sanyal submitted that the impugned order dated 10th April, 2017 issued by the District Inspector of School (P.E) Uttar Dinajpur should be quashed as it has been issued by the said District Inspector of School without jurisdiction after being dictated by the Commissioner of School Education. 13. Mr. Kousik Chanda, Learned ASG appearing for the U.O.I after adopting the submission of Mr. Sanyal further relied on Section 19 (2) of the said Act of 2009 which is quoted below :- “19-Norms and standards for school-(2)Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.” 14. Mr. Chanda also contended that the respondent no.5 has no authority under the rules to issue the impugned order of closure. 15. Per contra, Mr. Mr. Chanda also contended that the respondent no.5 has no authority under the rules to issue the impugned order of closure. 15. Per contra, Mr. Tapan Kumar Mukherjee, learned Senior Counsel appearing for the State submitted that the District Inspector of School is to ensure that the statutory mandates of the RTE Act. 2009 and RTE Rules 2012 and further the Government orders are strictly complied with by the intending school. But in the present case the school authority did not obtain ‘No Objection Certificate’ from the competent authority and they have further violated Section 22 (1), Chapter IV of RTE Act and Clause XIII of Memo No.323SE (Law) dated 15.03.2012 as their Teaching staffs do not possess the minimum qualification as prescribed by the competent authority. The school authority have also violated Section 29 (1) under Chapter V of RTE Act as they have not followed the curriculum as prescribed by the competent Authority and further they have also violated sub Clause X, (XVIII), (XXI) of Clause 15 (g) in terms of Memo No.323 SE (Law) dated 15.03.2012. Therefore, in conclusion Mr. Mukherjee submitted that there is no illegality or infirmity in the impugned order which deserves interference by this Hon’ble Court. Decision with Reasons 16. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after meticulously perusing the record and all relevant sections and rules I find that the concerned District Inspector of School is to hold a preliminary hearing only for verification of documents as submitted by the applicant school authority for obtaining ‘No Objection Certificate’ from the competent authority i.e. respondent no.3 herein for recognition of the said institution to run the same as an unaided institution as per schedule 1 of Rule 10 of the said Rules. Unfortunately in the case in hand the respondent no.5 the District Inspector of Schools, Uttar Dinajpur after being dictated by the Commissioner of the School Education West Bengal the respondent no.3 herein has issued the impugned closer order dated 10th April 2017 which is wholly beyond scope of his jurisdiction prescribed in the said Act as well as the rules framed therein. 17. 17. I also cannot ignore the fact that as per rules the concerned District Inspector of School after being satisfied would send a District Level Inspection Team to take inspection of the said school and thereafter the District Level Inspection Team shall submit its report in the format enclosed in Part 3 of Schedule I to the Director of School Education, West Bengal, with a copy to the applicant school within 60 days from the date of the preliminary hearing. 18. Thereafter the Commissioner of School shall within 30 days from the date of submission of report by the District Level Inspection Team place it before the District Level Committee for consideration for granting a 'No Objection Certificate’ in favour of the applicant school seeking affiliation under any Board located in West Bengal or outside as the case may be. 19. I also find that it is under Rule 12 of the said rules if the State Level Committee is of the opinion that the applicant school does not fulfil all the conditions and requirements for recognition as laid down in the Form of Schedule I, then the State Level Committee shall provide further chance of three months to the applicant school to make good the deficiency pointed out by the Committee. The decision of the Committee shall be communicated to the applicant school within 7 days from the date of hearing. 20. Unfortunately in the present case none of the conditions as prescribed under the said Rule have been complied with by the respondent authorities. On the contrary the concerned District Inspector of Schools after being dictated by the Commission of School Education issued the impugned closer letter dated 10th April, 2017 which is patently beyond his jurisdiction as prescribed by the said rules. 21. It is very much pertinent to mention here that it is evident from the impugned rejection order dated 10th April, 2017 that on the basis of the verbal direction given by the Commissioner of School Education West Bengal on 4th march, 2017 the District Inspector of Schools (P.E) Uttar Dinajpur issued the impugned closure letter thereby rejecting the petitioners prayer for issuance of ‘No Objection Certificate’. Further the Commissioner of School Education West Bengal has no business or authority to dictate the District Inspector of School (P.E) Uttar Dinajpur to reject the application for obtaining ‘No Objection Certificate’ as filed by the petitioner school authority. 22. It is crystal clear from the impugned closure letter dated 10th April 2017 that the said order was issued by the concerned District Inspector of Schools (P.E) Uttar Dinajpur on the dictate of Commissioner of School Education dated 4th march, 2017 which is beyond the scope of Rules. In support of this contention this Court relies upon a decision reported in 2011 (5) SCC Page-435 Paragraphs-26 to 28 (Joint Action Committee Of AIR Line Pilots’ Association Of India (ALPAI) And Others vs. Director General Of Civil Aviation And Others) which is quoted below :- “Para-26-The contention was raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. Para-27-Similar view has been reiterated by this Court in Comr. Of Police v. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Panchan Chand v. State of H.P. observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. Para-28-In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. It violates the constitutional scheme. Para-28-In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.” (Emphasis supplied) 23. Court also cannot shut its eyes on the point as argued by Mr. Sanyal that Section 23 (2) of the said Right of Children to Free and Compulsory Education Act, 2009 has been amended by the Parliament on 9th August, 2017 which came into effect on and from 1st April, 2015. Therefore, by virtue of the amendment of Section 23 (2) of the said Act, 2009 the period has been extended for four years with effect from 1st April 2015 for acquiring minimum qualification as laid down under Sub Section (1) from the date of commencement of the said Act of 2017. Therefore, in my opinion from 1st April, 2015 by 1st April 2019 all the teachers have to acquire requisite minimum qualification which is yet to be elapsed. Therefore, considering the above discussions I have no hesitation to hold that the impugned order dated 10th April, 2017 cannot be sustained in the eye of law as well as in the facts and circumstances of this case. 24. Accordingly the impugned letter dated 10 April, 2017 issued by the District Inspector of Schools (P.E) Uttar Dinajpur is hereby quashed and set aside. 25. I direct the District Inspector of Schools (P.E) Uttar Dinajpur to revisit the petitioner’s application strictly in accordance with law without being dictated by the Commissioner of School Education West Bengal within a period of two (2) months and if it is found that the petitioner school has submitted the application after complying all the requisite formalities then take requisite steps in accordance with existing rules. 26. With these aforesaid directions, this writ petition is disposed of without any order as to costs. 27. Urgent photostat certified copy of this Judgment, if applied for, be supplied to the parties on priority basis.