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delhi high court

Unaided recognized private school is not required to take prior approval before fees hike- Delhi High Court.

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Case title: Action committee unaided recognized private schools v. Directorate of Education.

Case no: W.P. (C) 5743/2024 and CM APPL. 23712/2024, CM APPL.23713/2024

Dated on: April 29th, 2024

Quorum: Hon’ble Mr. Justice C. Hari Shankar.

Facts of the case: 


Directorate of Education (DoE) issued Order dated 27.03.2024 that as per Section 17 of DSEAR, 1973 no private unaided school in Delhi which has been allotted land by the Govt. Agencies shall enhance fee without prior sanction of the Director of Education. All the Head of Schools/Managers of Private Recognized Unaided Schools, seeking prior sanction for increase in fee, to submit their proposals, for the academic session 2024-25, online from 01.04.2024 through website of Directorate latest by 15.04.2024. The proposals submitted by the schools shall be scrutinized by the Director and in case, no proposal is submitted, the school shall not increase tuition fee/fee. In case of complaint regarding increase of any fee without prior approval will be viewed seriously and will make the school liable for action against itself as per the statutory provisions. The said Notification was challenged by the Action Committee Unaided Recognized Private Schools and which has come up for hearing.

Contentions of the appellant: 


Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2. Both were decided by a common judgment dated 15 March 2019. The The impugned order is in the teeth of the judgment of this Court in Action Court to rely on the judgment of the Supreme Court in Modern School wherein was held that schools which are subject to the “land clause” have to take prior approval of the DoE before enhancing their fees.   
Contentions of the respondent: 


Upon reference in para 140 of Action Committee Unaided Recognized Private Schools case, this Court has accorded license to the principle that schools which are situated on land, to which the land clause applies, could not increase their fees without prior approval. From Modern School the propositions emerged was; (i) The issue for consideration, before the Supreme Court, was whether schools were charging excessive and disproportionate fees and whether, the DoE acted within its jurisdiction in issuing directives (ii) Unaided educational institutions enjoyed greater autonomy, in the matter of determination fee structure. Such institutions to be allowed to plan their investment and expenditure, to generate reasonable profit. (iii) Charging of capitation fees, and profiteering, could not be allowed. (iv) Balance, to be struck between autonomy of the institutions and measures to be taken to prevent commercialization of education. (v) These regulatory measures could not, trespass on the autonomy of the unaided educational institutions. (vi) The right to establish and administer minority educational institutions, conferred, by Article 30(1) of the Constitution, was subject to reasonable regulations. (vii) Subject to the prohibitory parameters, regarding charging of capitation fee and profiteering, fees chargeable by unaided educational institutions could not be regulated. (viii) The “issue”, condensed by the Supreme Court, was “as to what constitutes reasonable surplus”. (ix) The directions, issued to the DoE is to “ascertain whether terms of allotment of land by the Government to the schools have been complied with, by the schools”. In the event of non-compliance being detected, the DoE was directed to take “appropriate steps in that regard”.  

Issue: 


Whether unaided recognized private school is required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause? 

Legal provision: 


Section 8(2) of the Delhi School Education Act, 1973- which mandates prior approval for dismissal orders.  

Courts analysis and Judgement: 

 Action Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2 the Court observed that “the schools are entitled to complete autonomy in the matter of fixation of their fees and management of their accounts, subject only to the condition that they do not indulge in profiteering, and do not charge capitation fee, thereby “commercializing” education. There is no requirement for the school to take “prior approval”, of the DoE, before enhancing its fees”. The resultant legal position, following Action Committee Unaided Recognized Private Schools, is that an unaided recognized private school is not required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause. The principle that private unaided schools do not have to seek prior approval before enhancing their fees, so long as they do not indulge in profiteering or commercialization of education by charging capitation fees and making of profits, is undisturbed till date though it is subject to decision of the Division Bench. The DoE, even if dissatisfied with the judgment of this Court in Action Committee Unaided Recognized Private Schools has to respect the verdict so long as it stands. The attitude of the DoE in continuously issuing Circulars threatening recognized unaided schools is objectionable and cannot be allowed. The grievances are to be ventilated before Division Bench where the Appeal is pending, and not issue continuous circular thereby driving the schools to drive to litigations and repeatedly re-arguing the same points which were considered in Action Committee Unaided Recognized Private Schools. As long as there is no prohibition by the Division Bench, with the principle in Action Committee Unaided Recognized Private Schools the DoE is required to respect that position. In view of the aforesaid reasons, why rule nisi should not be issued? And until next hearing DoE Circular dated 27.03.2024 shall stand stayed.    

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Judgement reviewed by- Parvathy P.V.

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The powers of the Metropolitan Magistrate cannot be usurped by parties with malafide intentions; they view the High Court as their only option in NI Act cases. High Court of Delhi

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Title: Vinod Keni & Ors. vs Technology Development Board 
Decided on: 24th July, 2023

+ CRL.M.C. 942/2023 & CRL.M.A. 3608/2023, CRL.M.A.  3610/2023

CORAM: HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

 Introduction:

The present case involves two petitions filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.) seeking the quashing of complaint cases registered under Section 138 of the Negotiable Instruments Act, 1881, along with the summoning orders issued by the Metropolitan Magistrate. The petitioners contend that they should not be held vicariously liable for the alleged offense as they were only nominee and non-executive directors of the company at the time of the incident. On the other hand, the respondent argues that the petitioners’ claim of being non-executive directors is not supported by company records, and they should face trial as per the provisions of the Act.

Facts:

The complainant, the Respondent herein, filed two complaint cases against the petitioners under Section 138 of the Negotiable Instruments Act, alleging non-payment against dishonored cheques issued by the petitioners. The cheques were issued in favor of the respondent for substantial amounts. The Metropolitan Magistrate, based on the complainant’s evidence and other documents, issued summoning orders requiring the petitioners to attend the court and face trial.

The petitioners, being aggrieved by the summoning orders, approached the High Court with petitions invoking Section 482 of the Cr.P.C., seeking the quashing of the complaint cases and summoning orders. They argued that they were merely nominee and non-executive directors of the company at the relevant time and were not involved in the day-to-day affairs or in charge of the conduct of the business of the company. The petitioners further claimed that there was no evidence to suggest that they had knowledge of the dishonored cheques or any consent or connivance on their part.

Courts analysis and decision

High Court’s decision in this case is that it dismissed the petitions filed by the petitioners under Section 482 of the Cr.P.C. seeking the quashing of complaint cases and summoning orders issued against them under Section 138 of the Negotiable Instruments Act, 1881. The Court upheld the validity of the summoning orders issued by the Metropolitan Magistrate, which required the petitioners to attend the court and face trial.

The High Court found that the trial court had followed the proper procedures and had considered the complainant’s evidence before issuing the summoning orders. The Court also rejected the petitioners’ claim of being non-executive directors, as it was contradicted by the company records. The Court held that the question of whether the petitioners can be held liable under Section 138 of the Negotiable Instruments Act should be determined by the trial court based on the evidence presented by both parties.

The High Court emphasized that it should not interfere in the trial proceedings at this stage and allowed the trial court to proceed with the trial and consider the petitioners’ defense. The Court made it clear that the burden of proving their defense lies with the petitioners, and it is the trial court’s duty to evaluate the evidence and decide on their liability under the relevant provisions of the law.

In summary, the High Court’s decision signifies that the case will proceed to trial, and the petitioners will have the opportunity to present their defense before the trial court. The dismissal of the petitions means that the High Court did not find sufficient grounds to quash the complaint cases or the summoning orders, and it has allowed the trial court to continue with the proceedings and determine the merits of the case.

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Delhi High Court dismissed the review petition on the grounds of inordinate delay with no grounds for condonation.

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Title: MONIKA GUPTA Versus SANJAY BANSAL

Date of Decision: 19.07.2023

+ RFA(OS) 59/2019 & CM APPL. 19452/2022

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

     HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court dismissed the review petition on as the petitioner was lackadaisical in filing the review and there is no ground of reason to back this Inordinate delay of more than 1600 days.

Facts of the case

The appellant filed the current application in an effort to excuse the existing appeal’s 1969-day filing delay. The petitioner has chosen the current internal court appeal in opposition to a decision made on August 27, 2014, known as “the impugned order,” the respondent’s claim for particular judgement was heard by the learned Single Judge, wherein It was mandated to perform. According to the contested order, the parties had signed a contract to sell a piece of land known as Plot. Number 68, 50.40 square metres, Pocket 11, Block G, Sector 11, ‘The suit property’ in Rohini, New Delhi-110085, is up for sale Consideration in the amount of Rs. 80 lakhs.

The plaintiff said that on May 7, 2012—the day the Agreement to Sell was signed—it had paid the appellant/defendant a payment totaling Rs. 50,00,000/- (Rupees Fifty Lakhs). At the time of the Sale Deed’s execution, the remaining amount of Rs. 30,00,000/- (Rupees Thirty Lakhs) was due to be paid on or by May 15, 2012. The learned Single Judge observed that the defendant/appellant had not filed a written statement and that it was not on record despite having had enough opportunity to do so. Additionally, the appellant did not show up in front of the relevant court on the dates when the case was heard.

As a result, the respondent/plaintiff’s request for particular execution of the Agreement to Sell dated 07.05.2012 was granted by the learned Single Judge, who also decreed the suit.

Analysis of the court

The appellant claims that the respondent failed to file the reply despite being given enough opportunity to do so, which contributed significantly to the delay in the processes surrounding the review petition.

The appellant supported his claim by citing the ruling in the case of DSR Steel (Private) Limited v. State of Rajasthan & Ors.: (2012) 6 SCC 782, which held that the time spent by the party pursuing the review petition must not be taken into account when considering whether to excuse the delay in filing the appeal. He called this Court’s attention to paragraph 25.3 of the aforementioned ruling.

The appellant receives no benefit from the aforementioned ruling. Contrarily, the Court has mandated that the time spent by the party actively pursuing the remedy of review be excluded in suitable situations. In this instance, we determine that the appellant pursued its review petition in a careless manner, and we are unable to believe that the appellant did so conscientiously.

 It is obvious that the current appeal has been filed with excessive delay, and court finds no reason to excuse this.

 As a result, the appeal is denied.

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Delhi High Court dismissed the petition and held that the Court in exercise of power under Article 226 of Constitution of India does not substitute its view for the view of the competent authority.

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Title: RABINDRA KUMAR SAHA versus UNION OF INDIA & ORS.

Judgment delivered on: 18th July, 2023

+ W.P.(C) 9118/2023 & CM APPL. 34697/2023

CORAM:  HON’BLE MR. JUSTICE SANJEEV SACHDEVA

      HON’BLE MR. JUSTICE MANOJ JAIN

Introduction

The fact that the petitioner’s term has been reduced alone does not mean that the decision was not made with the organization’s best interests in mind.  The Delhi High Court denied the plea and ruled that, in using its powers granted by Article 226 of the Indian Constitution, the court cannot substitute its own judgement for that of the appropriate authorities.

Facts of the case

The petitioner requests the quashing of the decision dated 09.06.2023, among other things, on the grounds that it is against the posting policies issued by the respondent on 14.05.1999 and 15.01.2013. Additionally, the petitioner asks the respondent to issue a directive allowing him to keep his position as Chief Engineer (P) at Project Chetak.

By the impugned order dated 09.06.2023, petitioner has been posted to Headquarters, Director General Border Road (DGBR) at New Delhi.

The petitioner challenges the ruling on the grounds that the petitioner’s posting duration was reduced from the customary tenure of two to three years. Furthermore, it is argued that the correct and mandated posting and transfer procedure was not followed in this particular instance. The petitioner’s claims that the proper posting procedure requires the suggestion of posting at his level to be routed via the Additional Director General (HQs) for determination at the level of DGBR.

Analysis of the court

It is a well-established legal principle that the Court, when exercising its powers under Article 226 of the Indian Constitution, does not replace the opinion of the competent authority with its own. The decision was made by the appropriate authority, the DGBR, taking into account organisational restrictions and organisational interest. The fact that the petitioner’s term has been reduced on its own does not mean that the decision was not made with the organization’s best interests in mind.

The posting policy, which the petitioner also cites, states that postings must take organisational needs into account and that these needs would take precedence over all other factors.

Given the structure of the organisation, the officer’s personal interests will take a back seat to organisational and functional requirements, which will take precedence over all other factors. There is no question that the Director General of Border Road is the senior and most competent authority with regard to posting. The contested posting order was issued by the Director General Border Road, or DGBR, of the relevant authority.

The competent authority has taken into account both the petitioner’s representation and the ADG (North-West)’s proposal, but due to organisational limitations, he has chosen not to recall either and has rejected the representation.

Additionally, we reject the claim made by the petitioner’s knowledgeable attorney that the proper procedure was not followed. The Director General Border Roads has final say in all matters.

It is not implied that the responsible authority did not take into account all pertinent factors and organisational interest only because it is claimed that the suggestion for the posting was not routed through the ADG (HQs). It is also undisputed that the ADG (HQs) recommendations are not binding on the DGBR, the final decision authority, as the DGBR is a superior authority to the ADG (HQs). It is also undisputed that the DGBR has the authority to reject the ADG’s recommendations.

We believe that the decision made by the competent authority, the DGBR, does not require interference even if there was a procedural error in not passing the file through the ADG (HQs), given that the DGBR has already considered the recommendation and representation and taken a decision in the organization’s best interest. The respondent’s argument that the file should not be sent to ADG (HQs) and that correct procedure has already been followed is, of course, unaffected by this.

we find that no malafide can be attributed to the respondent and impugned posting order does not warrant any interference by this Court.

Merely because there is an instance of an officer whose posting orders have been repeatedly changed citing organizational interest would not imply that in the case of the petitioner, organizational interest has not been kept in mind.

we find that there is no infirmity in the posting order or that the same warrants interference in exercise of power under Article 226 of Constitution of India. We find no merit in the petition.

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Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal

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Title: LT COL PRAVAL PETER RETD & ORS. versus UNION OF INDIA & ORS.

Reserved on: 14th July, 2023

Pronounced on: 18 th July, 2023

+ W.P.(C) 3042/2023 & CM APPL. 11815/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. JUSTICE SATISH CHNADRA SHARMA

    HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal, Keeping in mind the principles outlined in the judgment of Squadron Leader Neelam Chahar and also keeping in mind a more prudent redressal path for petitioner which is more efficient and effective.

Facts of the case

The petitioners, who were ‘premature retirees’ from the Indian Army and Air Force, held Permanent Commissions before their early retirement. According to them, their retirement pension and other perks were Due to their failure to fulfil the required twenty years of service, which is a requirement for getting a full pro-rata service pension, it was unjustly denied to them.

The Petitioners were allegedly forced to retire early after successfully completing 10 years of service, but before reaching the twenty-year milestone, due to reasons beyond their control. Despite the fact that this early exit was approved by the appropriate authority, the petitioners argued that the respondents had conveniently ignored the pre-commissioning military training and reserve service periods, which when taken into account would total more than the required twenty years of service for the grant of a service pension. They should be qualified for the pension because these periods were essential and contributed to their overall service time.

The Petitioners demand service pension, even on a pro rata basis, due to them on reason of their early retirement, based on the afore-noted inconsistencies in computation of their service periods and application of criteria for providing benefits to them.

They had previously filed a writ petition [W.P.(C) 11893/2021], but due to the nature of the reliefs requested, it was rejected by order dated October 22, 2021, with the liberty to continue agitating the subject by launching a public interest lawsuit [“PIL”].

Petitioners elucidated their personal interest in the matter and urged the Court to consider their case within the ambit of the aforesaid writ petition, rather than as a PIL.

The policy dated February 19, 1987, which reportedly served as the basis for Respondents’ decision to deny benefits of pro-rata pension and other benefits like pension commutation and ex-servicemen status, was among the policies that Petitioners sought to have declared invalid in the instant petition in the nature of a PIL. They also sought a writ of certiorari to overturn the existing policy, non-statutory pension regulations, and other related instructions.

Analysis of the court

According to Regulation 34 of the Pension Regulations for the Army, 2008, which stipulates a minimum qualifying service of twenty years as a prerequisite for officers to receive service or retiring pension, the impugned communication, dated April 24th, 2019, cited in the aforementioned prayer clause, is Respondents’ decision.

Respondents claim that because the Petitioners are considered premature retirees, they are not eligible to benefit from Ministry of Defence policy dated 19th February, 1987.

It is important to emphasise at this point that the Petitioners fall under the purview of the Armed Forces Tribunal Act, 2007, and have access to a specialised forum for airing their complaints, the Armed Forces Tribunal (the “AFT”). However, the Petitioners opted to file a writ petition before this Court given to the ambiguity surrounding AFT’s ability to consider issues about the constitutionality of subordinate legislations, including rules, regulations, notices, and circulars.

Fortunately for the Petitioners, a recent decision by the full bench of this Court in Squadron Leader Neelam Chahar v. Union of India and Others, W.P.(C) 9139/2019, has clarified the issue surrounding the competence of the AFT to entertain petitions challenging circulars, statutory rules, regulations, and policies. The court held that the Armed Forces Tribunal is competent to hear the challenge to the vires of the subordinate legislations, rules, regulations, notification.

We feel that the AFT, given its specialised character, would provide a more swift determination for the Petitioners’ complaints given the recent clarification provided by the judgement mentioned above and taking into account the larger circumstances. There is no question that the Petitioners have a direct, personal interest in the issue, which usually precludes using a PIL. We are also aware that the petitioners who filed the current PIL did so with the freedom provided by a coordination bench, and that their perception of our decision to refer their case to the AFT may be unjust given that they have been exploring legal options since 2021 without receiving any redress.

However, our understanding relating to the jurisdiction of the AFT, has evolved in the wake of the judgment referenced above. Therefore, it becomes prudent to steer the Petitioners towards a path of redressal that is more fitting, efficient, and effective i.e., the AFT.

The current PIL is dismissed, together with any related ongoing petitions. The Petitioners are given the freedom to express the complaints made in their petition before the Armed Forces Tribunal while keeping in mind the guidelines provided in the aforementioned Squadron Leader Neelam Chahar judgement.

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