GYAN MANDIR SOCIETY AND ANR.versusASHOK KUMAR & ORS.

                      [201 O] 2 S.C.R. 845


            GYAN MANDIR SOCIETY AND ANR.                             A
                                v.
                 ASHOK KUMAR & ORS.
     (Special Leave Petition (Civil) No. 21954 of 2009)

                     FEBRUARY 16, 2010
                                                                     B
         [J.M. PANCHAL AND T.S. THAKUR, JJ.]

     EDUCA Tl ON/Educational Institutions:

      Taking over/Shifting of School - Society running a             c
school, allotted an alternative school site and asked to vacate
the existing site - Society starting school at allotted site and
the existing school taken over by NDMC on "as is where is
basis" - Writ petition seeking absorption of teachers and
adjustment of students of existing school on freeship basis          D
in the new school of the Society - HELD: The view taken by
the High Court that the society was obliged to absorb the
teachers and the students from existing school, does not
suffer from any error of law or jurisdiction to warrant
interference in exercise of powers under Article 136 of the          E
Constitution - However, the direction regarding free
transportation to students from existing school locality to the
new school does not have any contractual or other legal basis
and is, therefore, deleted - Constitution of India, 1950 - Article
136.
                                                                     F
    CIVIL APPELLATE JURISDICITION : SLP (Civil) No.
21954 of 2009.

    From the Judgment & Order dated 20.7.2009 of the High
Court of Delhi at New Delhi in LP.A No. 1307 of 2007.
                                                                     G
   Ashok Desai, Rohit Choudhary, B.R. Menon, Preeti
Khewani, B. Vijayalakshmi Menon for the Petitioners.


                              845                                    H
         846      SUPREME COURT REPORTS                   [2010) 2 S.C.R.


     A       Sanjiv Sen, Prashant Kumar, Anuja Chopra for the
         Respondents.

               The Order of the Court was delivered

                                        ORDER
     B
              T.S. THAKUR, J. 1. In this petition for special leave to
         appeal the petitioners call in question the correctness of an
         order dated 20th July, 2009 passed by a Division Bench of the
         High Court of Delhi whereby LP.A No.1307 of 2007 filed by
     c   the petitioners has been dismissed with costs assessed at
         Rs. 75,000/- and directions issued by the learned Single Judge
         of the High Court in W.P.(C) No. 11778of2006 affirmed.

             2. The facts giving rise to the filing of the writ petition and
       the Letters Patent Appeal have been set out in detail by the
     D High Court making it unnecessary for us to state them over
       again. Suffice it to say that W.P.(C) 11778 of 2006 was filed
       by the teachers employed with the petitioner society running a
       neighbourhood school at Tis January Lane, New Delhi falling
       within the NDMC area. With the allotment of an area measuring
     E 2.284 acres at Sadiq Nagar in favour of the petitioner - society
       the temporary allotment made in favour of the petitioner's society
       at Tis January Lane came to ari end on 31st of March, 1997.
       The society was accordingly asked to hand over the possession
       of the land but since the school was catering to the needs of
     F about 500 students and several teachers had been employed
       by the society to impart education to the students, practical
       difficulties were encountered in handing over the site. After
       detailed deliberations and prolonged correspondence the
       NDMC offered to take over the school on "as is where is" basis.
/'
     G A letter to that effect was issued by the L&DO on 1st April,
'.
       2002. The possession of the school was pursuant to that letter
       handed over to the L&DO on 8th March, 2006, who on the same
       day delivered the possession of the school building to the
       NDMC.
     H
   GYAN MANDIR SOCIETY AND ANR. v. ASHOK                     847
        KUMAR & ORS. [T.S. THAKUR, J.]

      3. In the meantime the society filed Writ Petition (Civil)    A
17889-90 of 2005 seeking permission to construct a building
for a senior secondary school at Sadiq Nagar over the site
allotted in its favour. The High Court allowed that writ petition
by its order dated 16th March, 2006. It is note-worthy that in
the said proceedings the society had maae a categorical             8
statement that students studying in the Tis January Lane school
can be accommodated by the society in the school being run
by it at Andrews Ganj on freeship basis and if fees are charged,
the same shall not be in excess of what they were paying in
the. Tis January Lane school.
                                                                    c
     4. W.P.(C) No.11778 of 2006 was at that stage filed by
the teachers employed by the society for its Tis January Lane
school in which they prayed for the following reliefs:-

         (a) issue a writ in the nature of mandamus to              D
    respondent No.1 to cancel the allotment of the Sadiq
    Nagar site of school measuring 2.34 acres allotted to
    respondent Nos. 4 & 5 vide dated 27.08.1975;

          (b) issue appropriate writ, orders and directions to
    the respondent No.3 to immediately and forthwith to take        E
    over the possession of the said Indian school/site from the
    respondent Nos. 4 & 5 and to seize all the records of the
    public school with freezing of the bank accounts of
    respondent No. 4 & 5;
                                                                    F
           (c) issue approptiate writ, orders or directions to
    respondent No. 3 to de-recognize the said public school
    at Sadiq Nagar, New Delhi and to make arrangements for
    shifting the existing school at Tis January Lane to the Sadiq
    Nagar site;                                                     G
           (d) issue appropriate orders/directions to respondent
    No. 3 to ensure the protection of the services of the
    petitioners and the payment of the arrears of their salaries
    at the earliest;
                                                                    H
    848          SUPREME COURT REPORTS                  [201 O] 2 S.C.R.


A                (e) issue appropriate writ, order or directions for
          holding an enquiry under the direct supervision of this
          Hon'ble Court to fix the responsibilities of the concerned
        . officials of the State whereby the Sadiq Nagar site of the
       . school located at Josip Broz Tito Marg, New Delhi was
B         misused for running a public school in the name and style
          of "Indian School" on the site allotted for shifting the existing
          Smt. R.K.K. Gyan Mandir Middle School from Tis January
          Lane, New Delhi and

                 (f) issue such other writ, order/orders/directions,
c         which this Hon'ble Court may deem fit and proper in the
          facts and circumstances of the case in the light of the
          above averment and in order to secure the ends of justice
          for which acts the humble petitioners shall remain grateful
          to this Hon'ble Court.
D
         5. A Single Bench of the High Court allowed the above writ
    petition by its order dated 20th September, 2007 with the
    following directions :-

           (1)    The Respondent Nos. 4 and 5 shall ensure that the
E                 Petitioner Nos. 2 to 16 are accommodated
                  appropriately in its unaided school, i.e. Indian
                  School, within four weeks from today; the said
                  teachers shall be absorbed on permanent basis;
                  their salary, allowances and other conditions shall
F                 be preserved with continuity of service. The arrears
                  of 5% contribution for the last one year, payable to
                  the petitioner Nos.2 to 16, shall be paid by the
                  society within 6 weeks, to them. This shall be over
                  and above the Rs.1,00,000/- amount volunteered to
G                 be paid by the society, as a good will gesture to
                  them. That amount too shall be paid, if not already
                  paid.

           (2)    Simultaneously, the said respondents shall take
                  steps to effectuate their statement about
H
    GYAN MANDIR SOCIETY AND ANR. v. ASHOK                     849
         KUMAR & ORS. [T.S. THAKUR, J.]

            assimilating all the existing students (from the aided   A
            school in the Tis January Lane) in the Indian school,
            on "freeship basis". The said students shall not be
            required to pay any amount over and above what
            has been paid by them all this while.
                                                                     B
      (3)   The society and fourth respondent shall ensure that
            the students of the aided school are given free
            transportation to the unaided school, and back to
            the Tis January Lane area as long as the students
            of the aided school study in the Indian school. It       C
            shall do all things necessary to meaningfully
            assimilate such children in the Indian school.

      (4)   The GNCT shall ensure compliance with the above
            directions; if necessary, it shall sanction additional
            sections, wherever required in the unaided school,       D
            to accommodate the influx of the students from the
            aided school as well as teachers and employees
            from there. It shall continue to preserve and protect
            the status of the petitioner employees as employees
            of an aided school.                                      E

      (5)   A status report disclosing due compliance with the
            above directions, and action taken in that regard
            shall be filed within 6 weeks, before this court, by
            the fourth and fifth respondents, and GNCT.
                                                                     F
     6. Aggrieved by the above order the society preferred
Letters Patent Appeal No.1307 of 2007 which has been as
noticed earlier dismissed by the Division Bench of the High
Court by the order impugned in this petition with costs
assessed at Rs.75,000/-.                                             G

      7. When the matter came up before this Court on 16th
December, 2009, Mr. Desai, learned senior co~nsel for the
petitioners made a statement that the petitioner society was
prepared to absorb all the students and the teachers employed
                                                                     H
    850     SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A for the school at Tis January Lane, New Delhi, from the next
  academic year, provided the students and the teachers were
  willing to join the petitioners-school. Mr. Sen, learned counsel
  appearing for the NDMC was also granted time to seek
  instructions as to~ whether the NDMC was prepared to absorb
B the teachers.

        8. Pursuant to the above direction, Mr. Sen submitted at
  the bar that while the NDMC is willing to accommodate
  students, who are not willing to join the Indian School of the --
C petitioner society it has no legal obligation what so ever to
  absorb the teachers who were employed by the petitioner
  society for running the school at Tis January Lane_ It was argued
  that since the teachers had themselves not prayed for any
  direction from the High Court for absorption in the service of
  NDMC, there was no question of issuing any direction to that
D effect especially when the same would go beyond the prayer
  made in the writ petition. It was submitted that the High Court
  had rightly concluded that the society was obliged not only to
  adjust the students but also the teachers employed in
  connection with the running of the school at Tis January Lane.
E
        9. There is in our opinion considerable merit in the
  submission of Mr. Sen. The High Court has after a careful
  consideration of the matter correctly held that the society was
  obliged to absorb the teachers and the students from Tis
F January Lane. The view taken by the High Court does not suffer
  from any error of law or jurisdiction to warrant interference by
  this Court in exercise of its powers under Article 136 of the
  Constitution. In fairness to Mr. Desai, we must mention that
  even he did not pursue the challenge to the orders passed by
G the High Court in so far as the same directs the society to adjust
  and absorb the students and teachers from the Tis January
  Lane school. All that Mr. Desai argued was that direction No.3
  issued by the learned Single Judge and upheld by the Division
  Bench of the High Court was totally beyond the scope of writ
  petition inasmuch as there was neither any prayer in the petition
H
    GYAN MANDIR SOCIETY AND ANR. v. ASHOK                      851
         KUMAR & ORS. [T.S. THAKUR, J.]
regarding grant of free transportation to the students from Tis        A
January Lane nor was there any legal justification for the issue
of any such direction. He urged that this Court could delete the
said direction and dispose of the present petition.

     10. Mr. Sen, learned counsel appearing for the NDMC had
no objection to that course of action. Even otherwise, we are          B
of the view that the direction regarding free transportation to
students from Tis January Lane to the Indian school does not
have any contractual or other legal basis to support the same.
According to the petitioner society also the school is not
providing any transportation to the students nor is there any          C
obligation to do so. Be that as may be, whether or not free
transport should be offered to students who may be adjusted
in the Indian school was never the matter in issue before the
High Court or in the writ petition filed by the teachers. The
students were also not parties to the proceedings either               D
individually or collectively. That being the position, we are of the
view that direction No.3 issued by the learned Single Judge and
affirmed by the High Court needs to be deleted and is
accordingly deleted. We may however clarify that this order
would not prevent the students from seeking appropriate                E
redress in appropriate proceedings before the competent
Court or authority and claiming free transportation to and fro
Indian school established by the petitioner society. In any such
proceedings the prayer regarding transportation shall be
examined uninfluenced by the observations made in this order.          F
Beyond the modification indicated above we see no reason
what so ever to interfere with the orders passed by the High
Court. The petition is, with the above observations, disposed
of. No costs.

R.P.                                        Petition Disposed of.