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Judgment
Khan, J.—It is all about the recognition of the Dewan Badri Nath Vidya Mandir School, Jammu. Appellants claim it is not recognised by the
Government but respondents assert otherwise. Is it recognised or not, is the million-dollar question answer to which can decide the fate of this
controversy.
It all seems to have sparked off when the authorities came across disturbing reports about the condition of the School building posing danger to
the safety and well being of the students. The building was subjected to an inspection and the S.E. (PWD) found it unsafe vide his report dated
May 30, 1988. Taking cue, the Municipal authorities also appear to have jumped in to the fray to initiate steps for its demolition.
The School management offered resistance and appealed to the Tribunal, but failed. It then filed a suit before the Municipal Judge leading to the
appointment of a Technical Experts Committee. This Committee also found the building unsafe, unhygeinic and highly congested.
Feeling concerned, the authorities, in a follow-up measure, called upon the School management to arrange for alternative accommodation to run
the School. The Board also asked for the order of the Govt. granting recognition to it.
After all this failed to evoke the desired response, the Government vide communication dated July 17, 1991 asked the Board to refuse to
entertain the admission-cum-permission Forms of the Institution as it stood recognised only up to March 1981. The Board fell in line and informed
the School accordingly by letter dated August 7, 1991. The School retaliated by challenging the two etters in OWP No. 971 of 1991, which was
allowed by judgment dated 18-8-1992. These two appeals are directed against the judgment and being identical in nature are being disposed of by
a common judgment.
While allowing the petition, the learned single Judge held that the school stands duly recognised as educational institution and since permission
granted to it had neither been withdrawn nor cancelled in terms of Sections 12 and 13 of the Act, neither the Govt. nor the Board had any
justification in suggesting or taking action in the light of communications dated July 17, 1991 and August 7, 1991. He further concluded that being
an autonomous body the Board had no reason to surrender to the dictates of the Govt. and that its Chairman by orders dated June 8, 1992 had
committed an illegality by constituting a committee to inspect the school and asking it to report on various aspects of its functioning. He accordingly
quashed the impugned communications and issued a mandamus to appellants to treat the school as duly recognised. He also evolved a machinery
to oversee the functioning of the school and appointed Mr. S.K. Gupta, learned District Judge, Jammu as Commissioner requiring him to
periodically inspect the school premises at least once a week and to issue necessary directions to ensure that the hygiene of the place and safety
and security of the students styding there and conducive and congenial atmosphere of the institution was maintained at all times.
Appellants are aggrieved of this judgment and assail it on the following grounds:--
(a) That the learned single Judge had fallen in error by holding that the school was duly recognised up to date;
(b) that the provisions of Sections 12 and 13 of the Act had no application where the order granting recognition to the school was limited to a
specific period i.e. up to ending March 1981)
(c) that the Board being bound by the directions of the Govt. under the provisions of J&K Board of School Education Act, 1975, it could not be
held that it had surrendered to he dictates of any outside agency i.e. the Govt.;
(d) that grant of permission to the school to secure 10+2 pattern or appointment of any Inspector after 1981 did not amount to a fictional
recognition of the school within the meaning of Section 6 of the Act;
(e) that the learned single Judge had over stepped his jurisdiction by issuing a mandamus commanding respondents to treat the institution as
permanently recognised and by creating a machinery under a Commissioner in violation of the provisions of law;
(f) that the learned single Judge had lost sight of communications dated March 24, 1984 and Dec. 6, 1985 whereby the Principal of the School
had requested for approval and extension of recognition of the school.
It is in this scenario that we are called upon to examine the correctness of the impugned judgment. The controversy, in our view, falls in a short
compass and the following points fall for consideration and determination:--
(i) Whether the school can be treated to be permanently recognised in the absence of a formal recognition order and in the face of an existing
available order which admittedly grants extension to its recognition only up to ending March 1981;
(ii) whether the Board was justified in refusing to entertain its Admission-cum-Permission Forms and Registration Returns at the instance of the
Govt. and whether it was bound by such direction;
(iii) whether the Chairman of the Board had committed any illegality or irregularity by constituting a committee to inspect various facets of
functioning of the school; and
(iv) whether the learned single Judge had over stepped his jurisdiction by evolving a machinery under the Commissioner replacing the statutory
authority.
It would be appropriate at this stage to clarify that the recognition required by a school is of two types -- one by the Govt. under the J&K
Private Education Institutions (Regulation and Control) Act of 1967 and the other under the Board of School Education Act of 1975. The dispute
in the present case centres round the recognition by the Govt. It may also be pointed out that though reference bas been made and reliance placed
on a number of statutes like the Secondary Education Act of 1965 and Private Education Institutions Act of 1984, only two Acts, namely, the
Private Education Institutions (Regulation and Control) Act, 1967 (hereinafter called Regulation Act) and the Board of School Education Act,
1975 (hereinafter called the Board Act) have a material bearing and are relevant for our purpose. Therefore, a reference to their relevant
provisions would be in order for proper appreciation of the contentions raised by the rival parties;
Private Education Institutions (Regulation and Control) Act of 1967:
Section 4 : Permission of the competent authority,--
No institution shall be established or run except with the permission in writing of the competent authority:
Provided that nothing in this section shall be deemed to prohibit a sponsor who is required u/s 5 to apply for permission to run an institution, from
running such institution for the period during which he is required to apply for such permission and if he has applied for such permission until he is
granted the permission or is, by a notice in writing, informed by the competent authority that permission for the running of such institution cannot be
granted to him.
Section 5 : Application for permission.--
(1) The sponsor of every institution existing at the commencement of this Act and of every institution intended to be set up after such
commencement, shall make an application to the competent authority for permission to run such institution or to set up such institution, as the case
may be.
(2) The application referred to in Sub-section (1) shall be made within such time and in such form as may be prescribed, and shall contain the
following particulars, namely:--
(a) the certificate or degree for which such institution prepares, or proposes to prepare, its students,
(b) the amenities available or proposed to be made available to students;
(c) the names of the members of the teaching staff and the educational qualifications of each such member;
(d) the equipment, laboratories, libraries and other facilities for instructions;
(e) the number of students in each class;
(f) the scales of fees of the students;
(g) the sources of income of the institution;
(h) the scheme of management referred to in Section 7;
(i) the description of the buildings in which such institution is being run or is proposed to be set up; and
(j) such other particulars as may be prescribed.
Section 6 : Grant of permission.-- On receipt of an application u/s 5, the competent authority may grant or refuse to grant permission to the
sponsor of the institution applying for such permission after taking into account the following matters, namely:--
(a) the method of imparting of education;
(b) the qualifications of the members of the teaching staff;
(c) the provisions for library and laboratory;
(d) the suitability and adequacy of accommodation;
(e) the provisions for the welfare of the students;
(f) the scheme of management referred to in Section 7; and
(g) such other matters as may be prescribed.
Section 8 : List of private educational institutions to be published.-- (1) The Govt. shall, on or before the first day of May each year publish in the
Govt. Gazette a list containing the name of every institution which has been granted permission u/s 6 (hereinafter in this Act referred to as approved
institution) together with such particulars of such institution as it may consider necessary;
(2) The Govt. shall publish in the Govt. Gazette as soon as possible the names of the institutions in respect of which such permission has been
cancelled under this Act.
Section 12 : Inspection.-- (1) Every approved institution may be inspected by the competent authority as often as he may think necessary;
(2) The competent authority may direct the sponsor to remove the defects, if any, found during the course of the inspection, within such time as the
competent authority may fix.
(3) If the defects are not removed within such time, the competent authority may, after giving the sponsor an opportunity of being heard, cancel the
permission granted u/s 6.
Section 13 : Directions of the competent authority.-- (1) The competent authority may, from time to time, issue such directions regarding the
management of an approved institution as he may think fit and it shall be the duty of the sponsor of such institution to carry out such directions
within such time as may be fixed in this behalf by the competent authority;
(2) If the directions issued under Sub-section (1) are not carried out within the time fixed by the competent authority, he may, after giving the
sponsor an opportunity of being heard, cancel the permission granted u/s 6.
Board of School Education Act, 1975:
Section 10 : Powers and functions of the Board.-- Subject to the provisions of this Act and also subject to the broad educational policies and
such directions and instructions as the Govt. may adopt and issue, from time to time, the Board shall have the following powers and functions:--
(1) to (v).................
(vi) to require schools recognised by the Board to extend their co-operation in the conduct of examinations held by it, by placing their staff,
equipment, halls and rooms, laboratories and other apparatus at the disposal of the Board;
(vii) to conduct inspection of the recognised schools/institutions to ensure-
(a) that the recognised schools have the requisite facilities of play grounds, furniture, laboratories, library, equipment, accommodation and qualified
teaching staff as prescribed by the regulations;
(b) that no recognised school/institution adopts books as courses of study other than those prescribed/approved by the Board;
(c) that the recognised schools/institutions maintain the standard of education and impart instructions strictly in accordance with the regulations
made under this Act;
(viii) to disaffiliate recognised schools which do not fulfil the conditions laid down in Clause (vi) and Sub-clauses (a), (b) and (c) of Clause (vii) of
this section;
(ix) to admit candidates to the examinations of the Board under the conditions laid down by the Regulations.
Section 31: Powers of the Government.--The Govt. shall have the right to cause an inquiry to be made by such person or persons as it may direct
in respect of any matter connected with the affairs of functioning of the Board.
(2) The Govt. shall communicate to the Board its views with reference to the results of the inspection or inquiry and may after ascertaining the
views of the Board thereon, advise it on the action to be taken and fix a time limit for taking such action.
(3) The Board shall report to the Govt. such action, if any, as it proposes to take or has taken upon the communication received under Sub-section
(2).
(4) If the Board does not, within a reasonable time, take action to the satisfaction of the Govt. with reference to the matter on which a
communication has been received under Sub-section (2) the Govt. ay after considering any report which the Board may furnish, issue such
directions consistent with the provisions of this Act comply with such directions,
There is not much to be referred from the Rules except explanation to Rule 5 of Grant-in-aid Rules of 1975, relied upon by Mr. Bhagotra in a last
bid effort to show that the school should be treated as permanently recognised.
Explanation : ""Such of the institutions as have been functioning continuously for ten years or more on the date of coming into effect of the Act, and
stood recognised either permanently or temporarily, shall be treated permanently recognised under these rules...
Regulation 20:
If the Educational Advisor or the Director of Education is of the opinion that any institution recognised by the Board has, by reason of
deterioration, ceased to meet the requirements of the Board he shall make a report of the same to the Chairman. On receipt of this report, the
Chairman may institute such inquiry as he thinks fit. The report of the inquiry will be placed before the Recognition Committee which will take it
into consideration at its next meeting. The opinion of the Committee on the report of the inquiry will be submitted to the Board at its next meeting
and the decision taken by it will be conveyed to the institution through the Education Advisor or the Director of Education, as the case may be.
Regulation 22:
No action shall be taken by the Board on any report by the Educational Advisor or the Director of Education without first giving the institution
concerned an opportunity of making any representation, it may wish to make, through the Educational Advisor or the Director of Education to the
Board.
We have heard learned counsel for parties and have considered the available record. Mr. Thakur, learned counsel for appellant, has relied
upon Govt. Order No. 1977-Edu of 1980 dated Nov. 28, 1980 to argue that the recognition of the school was valid up to ending March 1981
only and since no further extension had been granted in it thereafter it had to be treated as derecognised. Referring to the provisions of the
Regulation Act, he contended that Section 4 envisaged grant of a formal recognition in the absence of which no institution could be established or
run. Such a recognition could not be inferred or presumed merely because the institution had managed to function without it. Nor can it be said that
the Govt. had acquiesced in the matter by allowing such institution to function.
Mr. Thakur submitted that the school could be at worst deemed recognised up to July 17, 1991 -- the date of crucial communication of the
Under Secretary and not beyond that and the Board was within its rights to refuse entertaining of Admission-cum-Permission Forms. According to
him, Sections 12 and 13 of the Act had no application in a case where the order of recognition was valid only up to a point of time. These
provisions were attracted only in case of permanent recognition and could not be invoked in cases of implied grant or grant by inaction. The
Govt.'s alleged inaction was no substitute for a formal recognition envisaged by the Act.
Justifying the Board's action, Mr. Thakur pleaded that it had no choice in the matter as it was bound by the directions or instructions of the
Govt. He referred to Section 10(vii), (viii), (ix) of the Board Act to show that the powers of the Board including the power to admit a candidate to
the examination was subject to the directions of the Government.
Mr. Bhagotra, learned counsel for respondent school, on the other hand, sought to repeal all this. He defended the impugned judgment and
contended that the school had to be treated as permanently recognised in view of the following circumstances :--
(a) that it had been accorded permanent recognition by the Secondary Education Board, on June 10, 1967 under the J&K Secondary Education
Act, 1965;
(b) that it was already recognised up to 10th class when the J&K Private Education Institutions (Regulation and Control) Act of 1967 came into
force;
(c) that it was permanently recognised thereafter under the aforesaid Act of 1967;
(d) that it was accorded sanction to switch over to 10+2 pattern and to start 11th class vide Govt. Order No. 1649 of 1978 dated Sept. 7, 1978;
(e) that the school figured in the list of permanently recognised schools issued vide Circular dated April 2, 1992 u/s 8 of the Act and did not figure
in any list of de-recognised schools u/s 8(2) of the Act; and
(f) that the Recognition Committee recognised it every year on the basis of inspections conducted and reports submitted, the latest inspection
report having been submitted as late as on January 24, 1992.
As regards Government's power to issue directions to the Board, Mr. Bhagotra submitted that this power could only be exercised u/s 31 of
the Board of School Education Act of 1975 and that the Govt. had no such power beyond this. According to him, Section 10 of the Act did not
confer any independent power on the Govt. to issue directions to the Board and the directions contemplated therein had to be read in the context
of provisions of Section 31. In other words, no direction could be given to the Board by the Govt. unless such direction fructified after satisfying
the requirements of provisions of Section 31 of the Act. He also assailed the Chairman's power to set up a Committee to inspect the school under
Regulation 20 which, according to him, was subject to Regulation 22 and under which aggrieved institution had to be granted an opportunity to
make a representation. He also justified the appointment of Commissioner by the learned single Judge and raised a last minute plea that the appeal
filed by the State was time-barred.
It is in this back-drop that the judgment impugned has to be tested and scrutinised. Considering the nature of controversy, it all seems to be
revolving round the recognition of respondent school under 1967 Act. If it can be held that the school stands permanently recognised,
notwithstanding the terms of Government Order No. 1977-Edu of 1980 dated Nov. 28, 1980 which grants extension in recognition only up to
March 1981, the action of the Board in refusing to entertain Admission-cum-Permission Forms and Registration Returns of the respondent school
would have to be invalidated. Otherwise, it would have to be held in order. All other things pale into insignificance depending, of course, upon the
conclusions reached on this aspect.
Any exercise directed at finding the true nature of the recognition of the school would obviously involve reference and interpretation of
provisions of the Regulation Act. Therefore, it becomes necessary to refer to relevant provision wherever necessary. Section 4 of the Act prohibits
establishment or running of an education institution without the permission in writing of a competent authority. It, however, permits its running for
the period between the date permission is applied for and till it is granted or refused. Sections requires a sponsor of every institution existing at the
commencement of the Act to make an application for permission to run such institution which application shall contain the particulars prescribed in
Clause (2). Section 6 empowers the competent authority to grant or refuse the permission to recognition on receipt of such application after taking
into account the matters provided therein, one of which relates to suitability and adequacy of the accommodation. Sections requires the Govt. to
publish the list of recognised institutions in the Govt. Gazette every year and also to publish the names of the institutions in respect of which
permission has been cancelled.
Section 12 deals with the inspection of every approved institution by the competent authority as often he may think fit and on such inspection if
any defect is noticed, the sponsor may be asked to remove it within the time prescribed and in the event of his failure, the permission granted is
liable to be cancelled after notice to him. Section 13 empowers the competent authority to issue directions from time to time regarding management
of an approved institution and provides that in case the sponsor of the institution fails to carry on such directions, the authority may cancel his
permission after affording an opportunity of being heard.
On the factual front there is nothing on record to show that respondent school stands permanently recognised under the 1967 Act. The only
available order on the subject is Govt. Order No. 1977-Edu of 1980 dated Nov. 28, 1980 which accords extension to the recognition of the
school up to I0th class till March 1981 ""on the stipulated terms and conditions"". It is also a matter of fact that the school has functioned ever since
despite this and is functioning till date. There are also circumstances which show that appellants have glossed over the non-recognition of the
school and have even taken steps almost bordering its recognition. These include failure to take action despite alleged absence of recognition,
sanctioning the school's switch over to 10+2 pattern, conducting periodical inspections and so on and showing it, though erroneously, in the list of
recognised schools as late as in April 1992.
In the circumstances, it becomes a difficult task indeed to hold the scales even. The question that confronts in the process is should the
Government's inaction, acquiscence or for that matter even connivance be treated as a substitute for a recognition as envisaged by the Act and
allowed to confer a status on the school which otherwise is dependent on fulfilment of a number of statutory requirements. That precise is the crux
of the matter.
It does not present much difficulty to reach the right conclusion if the statute is made the guide and the record as index. Proceeding thus,
Section 4 of the Act, in our view, contemplates a permission in writing by the competent authority. The words ""in writing"" are significant and point
to the intention of the legislation that it must be a formal permission as distinct from an implied or an inferential permission by the competent
authority. In other words, it conceives of only a formal permission in writing without which no education institution can be run or established. Save
of course, for the period between the date of application and grant/refusal of permission. It does not admit of any other type of permission, be that
oral, implied or inferential.
An educational institution may manage to function without the requisite permission for whatever reason, but that does not and cannot clothe it
with the status of a recognised institution. Holding otherwise would put a premium on the default and give the institution licence to contravene the
provisions of the Act. That sure can't be the intent and purpose of the legislation. This view gets support by the scheme of the Act which prescribes
a penalty for contravention of its provisions. Therefore, where an institution manages or manipulates to function with or without the connivance of
the authority, it runs the risk of being penalised, but it cannot claim the status of a recognised institution on that basis.
Viewed thus, the only permission granted in writing is contained in Govt. Order No. 1977-Edu of 1980 which grants extension to recognition of
the school till March 1981 and which above all makes it loud and clear that recognition was being granted to the school on periodical basis from
time to time. There is nothing to controvert this except for Mr. Bhagotra's hollow claim that the school stands permanently recognised.
The other circumstances highlighted by Mr. Bhagotra are also of no avail to him. Neither the grant of sanction to the school to switch over to
10+2 pattern nor its erroneous listing in the list of recognised schools (vide Circular dated April 2, 1992 and subsequently corrected by
corrigendum dated July 4, 1992) can be treated as substitute for a permission u/s 4 of the Act, grant or refusal of which is dependent on a number
of statutory requirements. His reliance on Rule 5 of J&K Private Education Institutions Grant-in-Aid Rules of 1975 is also misplaced. These rules
have been framed under the Financial Code and not under the Regulation Act which is supported by a different set of rules made in 1969.
Therefore, anything contained in Grant-in-Aid Rules would have relevance only for purpose of sanctioning the grant-in-aid to a private educational
institution and not for grant of recognition u/s 4 of the Regulation Act. Consequently, even when these Rules provide that an institution should be
treated as permanently recognised if it had been continuously functioning for ten years or more on the date of enforcement of Regulation Act, these
can't be read to override or dilute the provisions of the parent statute. This should squarely answer Mr. Bhagotra's contention that since respondent
school had continuously functioned for ten or more years when the 1967 Act came into force, it should be treated permanently recognised.
We also find it difficult to accept that appellant State was required to resort to provisions of Sections 12 and 13 of the Regulation Act to
cancel the permission in the circumstances of the case. These provisions, in our view are attracted only in cases where a permission granted
permanently u/s 6 or an existing valid permission is proposed to be cancelled. There is no question of cancelling a permission which has outlived its
life or which is subject to grant of extension from time to time or which is claimed implied on the force and strength of circumstances.
Viewed thus, we are convinced that learned single Judge had proceeded on a wrong premise by treating the respondent school as permanently
recognised and by commanding appellants to treat it so.
Coming to the other aspect, whether the Board was justified in taking the action at the behest of the Govt., it becomes necessary to refer to the
relevant provisions of the Board Act of 1975 for proper appreciation of the contention raised in this regard. Section 10 deals with the general
powers of the Board and makes these subject to any directions instructions adopted or issued by the Govt. Section 31, on the other hand, deals
with the powers of the Govt. to order an inquiry in the affairs of the functioning of the Board and envisages issuance of directions in consequence.
The controversy centres round the nature of directions contemplated by the two provisions. Mr. Thakur's case is that all powers of the Board
including that of admitting a candidate to an examination is subject to the directions issued by the Govt. u/s 10. Mr. Bhagotra, on the other hand,
contends that Government's power to issue directions flows from Section 31 only and it does not possess any such independent power u/s 10.
Resultantly a direction issued u/s 10 has to be direction conceived u/s 31 and can be issued only after satisfying the conditions laid therein.
We find it hard to accept Mr. Bhagotra's interpretation. In our opinion, directions and instructions contemplated by Section 10 are independent
of the directions envisaged in Section 31 for the simple reason that the two provisions deal with two different situations and subjects. The scope of
Section 10 is far wider than that of Section 31 and the directions contemplated by either provision are relatable to their subject matter. It is too
much to say that a direction must first emanate and fructify u/s 31 and then only can be issued u/s 10, or that the power to issue such directions
only springs from Section 31. That does not appear to be the scheme of the Act at all.
On this reasoning, we are of the opinion that the Board had committed no illegality in taking the impugned action, bound as it was by the
directions and instructions of the Govt. in terms of Section 10. As a matter of fact, it would have failed in its statutory obligation by not so doing. It
is true that the Board is a body corporate having a perpetual succession and so on, but so long as the statute mandates it to do something in a
particular way, it has no choice in the matter. The learned single Judge was accordingly in error in holding the Board action as illegal and in
observing that it had surrendered to an outside agency i.e. the Govt. We also feel that the strictures passed against the Chairman were not
warranted in the light of the view taken by us.
The Chairman's action in constituting a Committee to inspect the school also cannot be held to be bad. Nor does it militate against the powers
of already existing Recognition Committee u/s 24 of the Board Act. We are also not inclined to accept that the Chairman's action in this regard
was subject to his fulfilling the conditions laid down in Regulation 22.
The two Regulations deal with different matters and situations. Under Regulation 20, the Chairman has the powers to initiate an inquiry on the
receipt of a report from the Education Advisor or Director of Education stating that the Institution has by reason of deterioration seized to meet the
requirements of the Board and this report is to be placed before the Recognition Committee. Regulation 22 envisages the final action taken by the
Board on any report by the Education Advisor or Director of Education and that is why an Institution is required to be given an opportunity of
making a representation. On this premise, Chairman's action in constituting a Committee to inspect the School was only a preliminary step taken
and the report of such Committee had to be placed before the Recognition Committee to be followed by a final action by the Board. It is only at
this stage that Regulation 22 would be attracted. Therefore, the Chairman was not required to grant any opportunity of making representation to
the School while constituting a Committee of Experts for conducting its inspection.
As regards appointment of the Commissioner, we have no doubt that Ld single Judge has over stepped his jurisdiction by doing so, more so
when its predictable consequence was to replace the statutory authority in overseeing and supervising the functioning of the school. A
Commissioner appointed by the court is no substitute for a statutory authority considering his incapacity and disability to enforce the provisions of
the statute. The Commissioner has submitted a report after the appeals were reserved for judgment. It is of no help to us in deciding these appeals,
but it surely speaks volumes about his functioning and his ability to become wiser after the event.
Mr. Bhagotra's last minute plea that appeal filed by the State was time-barred sounded like a cry in dispair. All the same, we have verified the
position and it transpires that its filing was delayed by a d ay or two. We condone it after having undertaken all this exercise of deciding the issues
on merit.
For the reasons given, we allow both these appeals and set aside the judgment impugned dated August 18, 1992 passed in OWP No. 971 of
1991.