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Synopsis

The Supreme Court has said that a recognised school or an existing class in the school, except an unaided minority school, should not be closed without offering full justification and without the prior approval of the Director, in terms of the Delhi Education Rules.

The apex court also said that if the closure of the school was illegal, the authorities would not be bound to absorb the staff and pay them salaries and pension.

A bench of Justices Hima Kohli and Sandeep Mehta rejected a contention by Delhi Sikh Gurdwara Management Committee against a direction by the Delhi High Court in 2009 to the New Delhi Municipal Council to recover the pay and perquisites including the pension and other benefits accruing to the staff of the school after reimbursement to them.

The court declined to accept a contention by the DSGMC that the burden of absorption of staff and payment of salaries and pension would be upon the authorities as the school received 95% grant from them, since the closure of the school was not in accordance with the rule.

The matter related to closure of Khalsa Boys Primary School, constructed by DSGMC in the premises of the Gurudwara Bangla Sahib, New Delhi.

Due to growing number of devotees visiting the Gurudwara, the appellant DSGMC found it difficult to run the school on a day-to-day basis. It, therefore, decided to shift the school from its existing location to a new premises at Mata Sundari College, Old Building, New Delhi.

Despite the stay order by the Delhi High Court on a plea by the staff against its move, the DSGMC demolished a substantial portion of the school building, making it non functional.

The NDMC decided to withdraw the recognition and to stop the grant-in-aid to the school being run by the appellant-DSGMC as ex-post facto sanction could not be granted for running the school at the Mata Sundari College because it fell beyond its jurisdiction.

On a fresh plea by teaching and other staff, the High Court directed for payment of arrears of salary and their employment in a government or aided school.

The NDMC was given liberty to seek reimbursement of the entire amount from the appellant-DSGMC which had closed the school without prior approval of the appropriate authority.

The offer of re-employment made by the appellant-DSGMC to the teaching and non-teaching staff of the school was not found to be bona fide.

The apex court here examined the issue whether the appellant-DSGMC has any valid ground so as to assail the impugned judgment of the High Court of December 9, 2009, whereby the NDMC was directed to reimburse the pay and perquisites including the pension and other benefits accruing to the staff of the school and “then to recover the same from the appellant-DSGMC”.

The DSGMC's counsel contended the NDMC and the Director (Education), NDMC are primarily responsible for absorption and payment of salary and other service benefits to the staff, which became surplus on account of closure of the school.

"However, we find it difficult to sustain this argument which is fallacious on the face of record. The closure which is contemplated in Rule 47 of the Delhi Education Rules has to be a valid closure, i.e., having been carried out with the prior approval of the Director as provided under Rule 46 of the Delhi Education Rules," the bench said.

The court also pointed out a bare perusal of the Rule concludes beyond the pale of doubt that no recognised school or an existing class in the school, except an unaided minority school, should be closed without offering full justification and without the prior approval of the Director.

The bench also noted admittedly, the school in question being run by the appellant-DSGMC was receiving 95% grant from NDMC, and it was closed down without due approval of the Director (Education), NDMC. 

As a consequence, the appellant-DSGMC cannot be allowed to take the shield of Rule 47 of the Delhi Education Rules so as to claim that the burden of re-employment and payment of salaries of the surplus teachers and the non teaching staff upon closure of the school would be that of the NDMC, the bench said.

"The question of absorption only arises when the closure of the school is done in accordance with law, which requires a full justification and prior approval of the Director as per Rule 46 supra. Since the closure of the school in question was undertaken de hors Rule 46, the argument advanced on behalf of the appellant DSGMC that the onus to absorb the surplus teaching and non teaching staff would be that of the NDMC, has no legal sanction and cannot be sustained," the bench said, dismissing the appeal by the DSGMC.

In its plea, the NDMC contended since the reimbursement was made in the year 2010, DSGMC might take a defence of the recovery being barred by limitation.

"Since the issue of seeking reimbursement was left open with a specific observation being made in this regard in the order on July 7, 2010, the bar of limitation would not come in the way of the appellant-NDMC in seeking reimbursement of the amounts paid to the staff of the school from the DSGMC," the bench said.

The court thus directed the NDMC to pay all remaining dues including interest to the respondents-staff of the school, within a period of eight weeks.

It also clarified and reiterated that the NDMC would be entitled to take recourse of the appropriate remedy for reimbursement of the amounts paid to respondents-staff of the school from the DSGMC, in case the DSGMC voluntarily failed to reimburse the said amount.