w w w . L a w y e r S e r v i c e s . i n



Delhi Public School, East v/s Central Board of Secondary Education & Others


Company & Directors' Information:- EAST INDIA CORPORATION LIMITED [Active] CIN = U61100TN1942PLC000704

Company & Directors' Information:- H H EDUCATION PRIVATE LIMITED [Active] CIN = U80301WB1997PTC083294

Company & Directors' Information:- J K BOARD PRIVATE LIMITED [Strike Off] CIN = U20101DL1998PTC094877

Company & Directors' Information:- A T C (EAST INDIA) PRIVATE LIMITED [Active] CIN = U63090MH2000PTC126349

Company & Directors' Information:- P. L. G. EDUCATION PRIVATE LIMITED [Active] CIN = U80300DL2007PTC171109

Company & Directors' Information:- A SCHOOL INDIA PRIVATE LIMITED [Active] CIN = U80211TN2011PTC079455

Company & Directors' Information:- C S EDUCATION PRIVATE LIMITED [Active] CIN = U80211DL2004PTC125711

Company & Directors' Information:- DELHI PUBLIC SCHOOL PRIVATE LIMITED [Strike Off] CIN = U80212BR2007PTC013022

Company & Directors' Information:- S D EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80903MH2004PTC147463

Company & Directors' Information:- K-EDUCATION PRIVATE LIMITED [Active] CIN = U80301MH2014PTC256056

Company & Directors' Information:- P W EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80212TN2009PTC072151

Company & Directors' Information:- A S C EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80904TG2015PTC099629

Company & Directors' Information:- V S INDIA EDUCATION PRIVATE LIMITED [Active] CIN = U80904UP2016PTC084320

Company & Directors' Information:- O S EDUCATION PRIVATE LIMITED [Strike Off] CIN = U74999UP2008PTC035501

Company & Directors' Information:- G D EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80302DL2003PTC122716

Company & Directors' Information:- S S V EDUCATION PRIVATE LIMITED [Active] CIN = U80904DL2012PTC245724

Company & Directors' Information:- S S M EDUCATION PRIVATE LIMITED [Active] CIN = U72200HR2010PTC040713

Company & Directors' Information:- P H EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80211DL2008PTC177735

Company & Directors' Information:- O E S EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80302DL2006PTC154572

    R. Special Civil Application Nos. 5670, 3748 & 5161 of 2020

    Decided On, 23 March 2020

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV

    For the Appearing Parties: Mihir Joshi, Rasesh Sanjanwala, Shalin Mehta, Senior Advocates With Bijal Chhatrapati, Dhaval Barot, Arvind Parikh, Tabish Samdani, Siddharth Sinha, J. Sagar Associates (8162), Manisha Lavkumar, Government Pleader, Kanva Antani, Divyangna Jhala, AGP., K.V. Shelat, Shaival Shelat, Parth Bhatt, Khyati Chugh, Advocates.



Judgment Text


Cav Judgment:

Draft amendment granted in Special Civil Application No. 3748 of 2020.

Rule. Mr. Kanva Antani and Ms. Divyangna Jhala, learned AGPs appearing for the State Of Gujarat and the DEO, Mr. K.V. Shelat, learned advocate for the CBSE and Mr. H.S. Munshaw for the District Primary Education Officer, Ahmedabad District Panchayat waive service of notice of Rule.

1. Being aggrieved by the orders passed by the Central Board of Secondary Education, the District Primary Education Committee and the State Government, these three petitions have been preferred.

1.1 Special Civil Application No. 5670 of 2020 has been preferred by the Delhi Public School challenging the order of Central Board of Secondary Education dated 30.11.2019/1.12.2019 by which the Central Board of Secondary Education (CBSE) has with immediate effect withdrawn the provisional/general affiliation to the Senior Secondary Level granted to the petitioner. The school also seeks to challenge the order dated 02.12.2019 passed by the District Primary Education Officer cancelling the recognition dated 21.03.2012 and the order dated 05.12.2019 passed by the State Government for taking over the administration of the school.

1.1 Special Civil Application No. 5161 of 2020 is filed by four parents of the children studying in the school assailing the abovementioned orders. Special Civil Application No. 3748 of 2020 has been filed by the students of the school through their parents assailing the order dated 02.12.2019 and praying for a direction that the state government may take an appropriate decision to continue to operate and conduct the affairs of the school and also for a direction to initiate strict action civil as well as criminal against the owners of the school.

2. The facts in brief leading to the filing of these petitions are as under:

2.1 The School - Delhi Public School East applied for a No Objection Certificate on 11.09.2009 to the Education Department, through the Gujarat State Secondary Education Board. On such a proposal, the State by a letter dated 10.10.2009 asked for various documents and information. The Education Department sent an intimation that the action on the proposal for NOC shall be taken only after receiving BU permission and other documents. On 21.06.2010, the School made an online application to the CBSE for affiliation with the Board. In the online application so made as against the column, whether NOC/recognition from the State/UT, the School had mentioned "NO" and had also attached a separate page stating that " the NOC file is under process".

2.2 On 21.10.2010, the Board rejected the proposal dated 21.06.2010 for Composite Provisional Affiliation upto Secondary Stage. Four deficiencies were pointed out, of which one was that the School had not submitted NOC issued by the State Government. On 21.09.2011, the School filed an application to the DEO, Ahmedabad Rural for granting NOC for Std 1 to 6. The State by a letter dated 01.10.2011 requested the Gujarat Board to forward certain documents. The State Board in turn asked the School to furnish such documents including BU Permission, NA Permissions etc. The School by a letter dated 12.11.2011 forwarded the documents pursuant to which the State Board addressed a Letter to the Education Department referring to the aforesaid letter and the spot inspection report dated 12.01.2012 and forwarded the proposal to it.

2.3 The State rejected the proposal for NOC by a communication dated 04.02.2012 on the ground that there were no NA permissions of the land in question. A request was made by the School, on 08.02.2012 for a conditional NOC with a letter to the Education Minister of the same date for a conditional NOC. The Education Minister on 07.03.2012 recommended that a conditional NOC be granted to the School. In the meantime, the District Primary Education Officer based on the inspection report of January 2012 granted permissions for classes 1 to 5 and 6 to 8 by separate orders dated 21.03.2012. The CBSE also in the context of the application for affiliation made on 21.06.2010 granted affiliation for the period from 01.04.2011 to 31.03.2014 by a letter dated 08.08.2012. This was granted under the switchover category.

2.4 On an application made on 02.04.2013 to the CBSE for upgradation of affiliation to the senior secondary level the school was granted upgraded affiliation from 01.04.2014 to 31.03.2017 by a letter dated 14.10.2013. When the School applied for extension of this affiliation on 22.03.2016 the affiliation was extended by a communication dated 27.05.2017 for a further period of five years from 01.04.2017 to 31.03.2022. The School continued to function regularly till such time, until events happened in November 2019, which culminated into passing the impugned orders.

2.5 On 16.11.2019, newspapers reported that one Swami Nityanand, an absconding accused wanted in kidnapping and rape case ran an Ashram on the premises of the School. This prompted the State Authorities as well as the CBSE to initiate inquiries. An FIR was filed against the Ashram for abduction etc. On 16.11.2019, the DEO (Rural) inspected the premises and asked for map of the School and documents. The School provided the leave and license agreement and the list of students from the Ashram. A rojkam was prepared on the basis of a visit on 18.11.2019. The Principal of the School also sent an email responding to the queries of the spot inquiry. On 19.11.2019, a team of the officers of the DEO visited the School and asked for a list of 25 documents to be provided within 7 days. The School terminated the leave and license agreement with the Ashram on 19.11.2019. A notice was issued by the Office of the DEO stating that the School was not co-operating in the Inquiry and if the documents were not supplied within 7 days action On 22.11.2019 the School replied to the letter of the DEO dated 19.11.2019 submitting documents in substantial compliance of the letter.

2.6 The DPEO on 25.11.2019 issued another communication asking that documents be submitted on the same day as instructed by the DEO. This was followed by an email of 28.11.2019 stating that there was non-coperation from the school and therefore if some of the documents not submitted were not handed over then a report will be prepared and submitted to the higher authority presuming that the school has nothing to say. The School sought time on 29.11.2019 upto 02.12.2019. On 02.12.2019 an email was received asking the school to submit the documents by 2.00 pm. On the same day by the order of 02.12.2019 the recognition of the School was cancelled on the ground that the school had not co-operated with the inquiry. This was a part of the action that was initiated by the State

2.7 While the DEO had initiated action by letter dated 19.11.2019, the CBSE also on 21.11.2019 addressed a letter to the Director of Education with a copy marked to the School requesting the Office to inquire into the land matter and suggested that as the School was granted NOC by the State on 27.07.2010 and the school cannot lease out land to any other institution, an inquiry may be conducted in the matter as well as the status of the NOC and report to the Board. On 23.11.2019, the CBSE issued a Show Cause Notice to the School asking the School to show cause why its affiliation should not be canceled on two grounds viz. (a) That on the basis of an inquiry initiated on its request a letter was received from the Director Of Schools dated 22.11.2019 that the School had made several misrepresentations regarding the land and its allotment to the Ashram and no permission was sought for and (b) the NOC dated 27.7.2010 based on which the Board had granted affiliation was never issued by the State. The School was given 7 days to respond to the notice. The State lodged an FIR on the subject of forged NOC. The School gave a detailed reply on 29.11.2019 to the CBSE'S show cause notice. The School also asked for personal hearing.

2.8 By the impugned order dated 30.11.2019/01.12.2019, the CBSE withdrew the affiliation with immediate effect, however keeping in view the academic interest of the students, the students of Standards X and XII were allowed to appear in the Board Examinations to be conducted in March 2020. The order further stated that the students of standard IX and XI shall be shifted to nearby CBSE Schools to be decided by the Regional Officer, Ajmer. By a communication dated 16.03.2020 pending the petition, the Board accorded approval for continuance of registered students of class IX and XI of Session 2019-20 from the school for Board examinations to be held in 2021. By an Order dated 05.12.2019 which is also under challenge, the State took over the administration of the School till 31.03.2020 citing larger interests of the Students.

3. Mr. Mihir Joshi, learned Senior Advocate with Mr. Bijal Chhatrapati, Mr. Arvind Parikh, Mr. Tabish Samdani & Mr. Siddharth Sinha, learned advocates for J. Sagar Associates has appeared for the School in Special Civil Application No. 5670 of 2020. Mr. Shalin Mehta, learned Senior Advocate with Mr. Parth Bhatt, learned advocate has appeared for the students in Special Civil Application No. 3748 of 2020 and Mr. Rasesh Sanjanwala, learned Senior Advocate with Mr. Dhaval Barot, learned advocate has appeared for the parents in Special Civil Application No. 5161 of 2020. In all these three petitions, Ms. Manisha Lavkumar Shah, learned Government Pleader with Mr. Kanva Antani, and Ms. Divyangna Jhala, learned AGPs has appeared for the State Of Gujarat and the DEO. Mr. K.V. Shelat, learned advocate with Mr. Shaival Shelat, learned advocate has appeared for the CBSE. Mr. H.S. Munshaw has appeared for the District Primary Education Officer, Ahmedabad District Panchayat.

4. Mr. Mihir Joshi, learned Senior Counsel has submitted that the orders impugned have been passed in violation of principles of natural justice. So far as the order cancelling affiliation is concerned, the same was passed with undue haste. In response dated 29.11.2019 to the show cause notice the petitioner had asked for a personal hearing which was not granted though the order amounts to economic death particularly when the affiliation was granted as back as in the year 2012. The impugned order was passed on a Sunday within a week from the date of issuance of show cause notice. He relied on clauses 13.4, 13.6 and 13.7 of the CBSE affiliation bye-laws and submitted that the same was violated. As per the bye-laws there was no full scrutiny and on the filing of the reply the order was passed the very next day. The order cancelling affiliation is a non-speaking order without application of mind. The order goes beyond the allegations made in the show cause notice since in the show cause notice no reference is made to the inspection committee's report, copy of the inspection report though relied on is not provided. He further submitted that in the impugned order reliance is placed on an inquiry report of the State dated 22.11.2019 but no copy thereof is provided to the petitioner. The State Government too did not provide an opportunity to the school to respond to the CBSE's letter dated 21.11.2019 which was the basis of the report being prepared.

4.1 On the ground of alleged forged NOC being submitted by the school, Mr. Joshi made the following submissions:

(a) School's online application is on 21.6.2010. This says "NO" to question on NOC. NOC is not uploaded. Purported NOC is of 27.7.2010, received by School by CBSE's email. Affiliation application is rejected on 20.10.2010. NOC had inbuilt expiry of 6 months. Affiliation granted on 8.8.2012. The upgradation application of 2.4.2013 and extension application of 22.3.2016 did not require NOC in view of amendment to CBSE Bye Laws.

Upgradation application refers to recognition of State Government bearing reference No.232/12 dt. 21.3.2012 .

(b) Clause 10.1.16 penalises uploading of forged documents. It is not CBSE's case that any forged document was uploaded. Only online submission could have been accepted in terms of Clause 10.1.1.

(c) CBSE's finding in its Order as to reliance by the School on forged NOC, is limited to the Inspection Committee verifying NOC during inspection. But the Inspection Committee report contains no reference to date of NOC. An attempt to improve its case, is made by CBSE in its Affidavit in Reply by relying upon letter of 16.5.2012, Internal Note dt. 17.5.2012, letter to Inspection Committee members 29.5.2012 and Inspection Committee report of 10.7.2012. Such reliance on evidence to be used against the School without referring in the show cause notice, much less providing it to the School, is bad in law. That apart, letter of 16.5.2002 refers to letters sent / submitted earlier but does not refer to any NOC nor indicates it being enclosed. There is nothing to show that the NOC @ Pg. 985 is an enclosure to the letter @ Pg. 984. The documents from pgs. 986 to 992 suggested as being enclosed to the letter of 16.5.2012 are of 2010, 2005, 2009 which could not have been produced, as late as in 2012. Ms. Dua has denied reliance upon any NOC. The Internal Note is improbable on the face of it, since (i) refers to stale document, (ii) erroneously reads the letter of 16.5.2012 as submitting compliances, (iii) itself refers to the rejection of 20.10.2010 but nonetheless appears to treat NOC of 27.7.2010 as a valid compliance, and (iv) omits to notice the obvious incongruity of NOC pre-dating the recognition, contrary to the requirement of the Clause (3)(i) of Bye-Laws. Reliance on specific point 2-reference to NOC, of the letter to Inspection Committee members, as being reference to the purported NOC is misplaced since this letter is only a standard format. The Inspection Committee's report is not produced in full. Annexure A to the letter to Inspection Committee members of 29/30.5.2012 has not been produced. Perusal of Pgs. 1010 to 1013 do not sync with the annexures referenced in the Inspection Committee report. There is nothing to show that Pg. 1012 is the NOC referred at Sr. No. 17 of the IC report. There is a significant variation in the version of purported NOC produced before the Hon'ble Delhi High Court and the version produced before this Hon'ble Court omission/addition of signatures and interpolation of purported rubber stamp of School's manager when the school has never had a post of manager. The version at Pg. 1141 does not carry the purported signature of the manager though before the Delhi High Court, it was sought to be passed off as annexure to the Inspection Committee Report.

(d) The burden of proving reliance by School on forged NOC is on CBSE, which is a heavy burden to discharge. CBSE has failed to do so. Allegations against individuals, that too, ex trustee/director/principal cannot even otherwise justify action against the School, which has no vicarious liability for acts of the individuals. This is all the more so since the School has repeatedly denied any reliance upon the purported NOC (response to show cause notice at Pg. 359). The Order of grant of affiliation (Pg. 181) does not rely upon the purported NOC. Mention of NOC under Special conditions is a routine inclusion, not specific to the School, like the other conditions contained therein. For instance, condition no. 1 had no application to School since it did not have State pattern classes IX and X. Ironically, the said grant of affiliation itself is issued in the name other than as found on the purported NOC, which demonstrate its lack of significance. Alternatively, the said grant of affiliation is even copied to the State Education Department which raises the pertinent question as to the silence of the State Education Department August 2012 till November 2019.

(e) CBSE's Order relies upon the report of Commissioner of School dated 22.11.2019. This report is irrelevant in so far as the first ground of CBSE's order as to reliance upon forged NOC is concerned as the said Commissioner would have no knowledge as to whether the School had submitted such NOC.

4.2 Mr. Joshi submitted that the School had not leased out School Land to a religious institution. In this context he has made the following submissions:

(a) CBSE's Order relies upon the report of Commissioner of School dated 22.11.2019 (report at Pg. 725) to come to a finding that the School has leased out school land to a religious institution. There is no objective satisfaction on this, arrived at by CBSE. The report of the Commissioner too does not arrive at any finding to this effect. It does not show any factual site visit or other examination. It simply states that the DEO has relied upon the Leave and License Agreement dt. 15.7.2019, to arrive at this conclusion. Leave and License Agreement was anyway at a token fee of Re. 1/- and has been terminated on November 19, 2019 and the premises stand vacated. Factually, apart from not being a lease but a license, CBSE has granted affiliation on the basis of land certificate (Pg. 1013) which refers to Block Nos. 45, 47, 48, 67 and 68, (School's response to SCN, (Pg.359 at 361). Significantly, grant of affiliation dt. 8.8.2012 prescribes the Campus area required, based on the enrolment numbers. The Petitioner with an enrolment number which has never exceeded 900 students, would only require 1 acre (Pg. 181 to 196, An. 14), but as acknowledged in the said affiliation granted by the CBSE, the area of the Petitioner Campus is shown as 25374 sq. mtrs. (Affiliation at An. 14, Pg. 181 to 196, relevant at Pg. 183), which translates to approximately 6.21 acres. The School occupies land far in excess of the requirement even excluding the premises which were licensed to NDT. CBSE has completely lost sight of this aspect.

(b) Email of School's Principal at Pg. 685 is misinterpreted, since the assertion is that both the premises are of Calorx Education and Research Foundation, not that the land licensed is part of the School.

(c) CBSE's argument as to breach of condition No. 4 of the affiliation is misconceived as this is not a case of transfer of property / sale of school by one society / management to another... Moreover, permissive use by way of a leave and license agreement does not amount to transfer of land. The correct applicable clause is 14.23 which while not contemplating any prohibition, requires change in the Board records, which too is only in respect to any portion of the land which has been taken on record by the Board at a time of grant of affiliation. CBSE's order is perverse and suffers from non- application of mind. For instance, in disbelieving the School's position that the land licensed to the religious institution was not part of the land allocated to the School, it relies upon an assertion in the State Education Department's report of 22.11.2019 that several misrepresentations were made regarding the title and status of land (Recital 2 at Pg. 77). Clearly, irrespective of the correctness or otherwise of this assertion, it does not establish that the land allocated to the School, was given to the religious institution.

(d) The fact remains that there are no misrepresentations. The documents annexed to the NOC applications clearly show otherwise. Importantly, while the NOC applications were rejected, the State had granted recognition to the School on 21.3.2012, after rejection of the NOC application.

(e) Also, copies of the sale deeds of purchase of land show that there was no misstatement as regard the ownership.

4.3 Mr. Joshi submitted that the issue of NOC is in any case irrelevant / redundant. In this regard he has made the following submissions:

(a) The first affiliation dated 8.8.2012 was for Secondary Section (Classes 9 and 10), which was based on State recognition dt. 21.3.2012 and not on NOC. This affiliation expired by efflux of time on 31.3.2014. This could not have therefore been withdrawn in 2019.

(b) The second affiliation dated 12.10.2013 was an upgradation for Secondary Petitioner and Higher Secondary (Classes 11 and 12) and the third affiliation dt. 27.5.2017 was an extension, both granted pursuant to different and independent applications, at the time when NOC requirement was not there. Effectively, affiliation applications received from 8.7.2013 onwards till 31.12.2016 required no NOC. Factually also, second and third affiliations were not based on any NOC and therefore, could not have been withdrawn by the Impugned Order.

(c) Clause 2 of CBSE Affiliation Bye-Laws of 1998, categories for which affiliation may be considered. Clause 3 contemplates conditions for these 4 categories. The Petitioner was not granted affiliation under any of these categories, but under switch over category. NOC is not a requirement for this category. Additionally, as NOC is to obviate dual affiliations, in the instant case since the State Recognition was only till Class VIII while CBSE affiliation was for Secondary School Examination, i.e. class IX and X, there was no overlap and no requirement of NOC.

4.4 Mr. Joshi submitted that the emphasis of CBSE that requirement of NOC is mandatory and that on this count alone, when the School itself claims not to have any NOC, the affiliation has to be withdrawn, is ill-founded. NOC is not mandatory, particularly for switch over category and the online forms itself use recognition and NOC interchangeably.

Having proceeded on the ground of alleged forgery of NOC which casts a stigma, it is for CBSE to make good this allegation, which it has failed to do. The position of the School as to it having never submitted any NOC, cannot be read as an admission by the School of having forged the NOC. CBSE cannot be permitted to withdraw affiliation which has been in force since 2011, on the ground that it ought not to have been granted or that it was a mistake to grant.

4.5 Mr. Joshi further submitted that the School being now, on 16.3.2020 permitted classes IX and XI shows that there is no inherent objection against the present management. Nonetheless, in the larger interest of students, the School offers that, should the Hon'ble Court require, until such time as the Court may deem fit, the School would welcome overseeing of its operations by a retired High Court Judge, as may be appointed by this Court.

4.6 In support of his submissions, Mr. Joshi relied on the following decisions:

* M/s Maheswari Enterprises V/s. The Commissioner of Central Excise, Bolapur Commissionerate and Another -2014 SCC OnLine Cal 21939 @ at pages 2 and 3.

* SACI Allied Products Ltd., UP V/s. Commissioner of Central Excise, Meerut (2005) 7 Supreme Court Case 159 @ paras 8, 16 and 17.

* Konda Prabhakar Rao V/s. State of Jharkhand and Others - 2011 SCC OnLine Jhar 734 : (2012) @ paras 3, 5 and 6.

* Mohinder Singh Gill & Anr. vs. Chief Election Commissioner, New Delhi and Ors State of Punjab Vs. Bandeep Singh and Ors. - (1978) 1 SCC 40 @ para 8 (2016) 1 SCC 724 @ para 4.

* Vinay Gurjar Minor Under Guardianship Father Shri Arjun Singh Vs Central Board of Secondary Education - WP-4875-2015- Madhya Pradesh High Court- Page 2.

* D. K. Yadav V/s. J.M.A. Industries Ltd - 1933 SCC (3) 259 @ paras 7, 8, 9, 10, 11, 12, 14, and 15.

* State of Orissa V/s Dr. (Miss) Binapani Dei& Ord - 1967 AIR 1269 @ para 10 and 12.

* Daffodills Pharmaceuticals Ltd. and Anr. vs. State of U.P. and Anr. - 2019 SCC Online SC 1607 @ para 17 and 18.

* The Secretary & Curator, Victoria Memorial Hall V/s Howrah Ganatantrik Nagrik Samity& Others- 2010 (3) SCC 732 @ Paras 41,41 and 42.

* Maya Devi (dead) V/s. Smt. Raj Kumari Batra (dead) through Lrs.& Ors. Civil Appeal No.13 of 2003 @ Paras 13,14 and 17.

* East India Co. Vs. Official Liquidator and Ors : MANU/ GJ/ 0001/ 1970-Para 41 to 45 @ paras 36 to 42.

* Nagarjuna Construction Company Ltd. V/s. Government of Andhra Pradesh and Others - (2008) 16 SCC 276 @ Paras 12,20,31,33& 34

* H.l. Trehan and Ors. Etc. V/s Union of India and Ors. - 1989 AIR 568 (SC)-Paras 12 and 13.

* Hasmukhbhai Thakorebhai Patel and Ors. Vs. Registrar Cooperative Societies and Ors. (09.02.2017 - GUJHC): MANU/GJ/0180/2017-Paras 4, 4.1, 6.1, 7 and 9.

* International Cargo Services vs Union of India-120 K.I. Shephard and Others V/s. Union of India and Others (1987) 4 SCC 431 @ paras 15 and 16. (2005) DLT 195- Para 7, 10-12

* Swadeshi Cotton Mills v union of India (181)1 SCC 664-Para 94 @ paras 26, 27, 28, 29, 33, 36, 37, 38, 44, 68, 77, 93 and 94.

* Basant Lal Memorial College of Education vs. National Council for Teacher Education and Ors. - 2010 SCC Online Del 3058 @ para 11.

* Basant Lal Memorial College of Education vs. National Council for Teacher Education and Ors. - 2019 SCC Online Del 9444 @ 14.

* Anil Rishi Vs Gurbaksh Singh- (2006) 5 SCC 558 @ Para 8, 9, 10, 12, 16 18 and 19.

* Mst.Mastura Sultan & Ors vs. Dy. Custodian Gen. of Evacuee Property ILR (2010) III Delhi 742 @Paras 19,22,23,24 & 27

* M/s Kishanchand Chellaram V/s. CIT Bombay City-II-(1980) Supp SCC 660-Paras 6 and 7

* Shri Pawan Kumar Patodia V/s Vijoy Kumar Bhutoria & Others -2012 SCC OnLine Gau 201 : AIR 2012 Gau 183 @ para 22.

* Attorney-General of Hong Kong V/s. NG Yuen Shiu - Reported by Paul Magrath, Esq., 2 W.L.R. 735 @740 to 743, approved in (1995) 2 SCC 326

* Badrinath V/s. Government of Tamil Nadu and Others - (2000) 8 SCC 395 @ Paras 27, 36, and 64.

* Govind Anant Goltekar and Ors. Vs. Dasharath Deoba Goltekar - AIR 2006 Bombay 174 @para 12

Smt. Bhimabai Mahadeo Kambekar (D)Th. LR Vs. Arthur Import and Export Company- (2019) 3 SCC 191 @ Para 6.

* S.J.S. Business Enterprises (P) Ltd. V/s. State of Bihar and Others - (2004) 7 SCC 166.

* Sunil Pannalal Basnithia and Others V/s. City& Industrial Development Corporation of Maharashtra Ltd. and Another - (2007) 10 SCC 674.

5. Mr. Shalin Mehta, learned Senior Counsel submitted that the order of the CBSE dated 01.12.2019 withdrawing affiliation is illegal. The order is passed on an assumption that the NOC dated 27.07.2010 is forged and fabricated. Such an assumption that the document is forged and fabricated without it being established in a properly constituted inquiry or at the conclusion of criminal trial without participation of the delinquent and adducing evidence is misconceived. The order therefore is arbitrary, violating the principles of natural justice.

5.1 With regard to the order withdrawing recognition dated 02.12.2019 is in violation of Section 40A(7) of the Gujarat Primary Education Act and Rule 109 of the Gujarat Primary Education Rules, the Act and the Rules prescribe a procedure which is mandatory. There is no provision in the Rules and the Act by which such procedure can be dispensed. The order therefore is bad. The DPEO's order dated 02.12.2019 violates the provisions of Section 18 of the Right to Education Act, 2009 and Rule 16 of the Right To Education Rules. Reading Section 18 of the Act, Mr. Mehta would submit that withdrawing recognition requires consequential orders stipulating a direction inbuilt stating that the students shall be admitted to a neighbouring school. The order impugned misses mentioning this. Rule 16 of the RTE Rules provides for detailed procedure for withdrawing recognition. The procedure is mandatory. The order withdrawing recognition has not been followed and there has been no prior approval of the State Government. Moreover, the order withdrawing recognition should come into effect from the succeeding year as provided in the mandate to avoid midstream crisis. The order impugned has been made effective forthwith and the State has taken over the management. There is no provision in the Act by which the management of the school could be taken over by the State.

5.2 Relying on a decision of the Apex Court in the case of Internet and Mobile Association of India vs. Reserve Bank of India in Writ Petition Civil 528 of 2018 dated 04.03.2020, Mr. Mehta submitted that the order of the DPEO violated the doctrine of proportionality. The decision making process did not take into account the least restrictive alternative like allowing the school to run with an administrator of the State Government or by the same management under the control and supervision of the State Government till a full fledged inquiry is conducted in arriving at the truth about the purported NOC dated 27.07.2010.

5.3 Mr. Mehta further submitted that after the RTE Act of 2019, children are important stakeholders in education and so it is obligatory on the part of the watchdogs of education to keep in mind the interest of students while taking such a drastic action. The school is not wanting in any respect, has proper infrastructure and teachers, maintains student teachers ratio, has a playground, has land, has building use permission and therefore it cannot be shut down on an alleged wrongdoing of an erstwhile principal. No vicarious liability can be visited on the existing management. Innocent parents and children who have no role to play in any kind of fraud or wrongdoing can face adverse consequences. Reliance was placed on the decision of the Apex Court in the case of Society for Unaided Private School of Rajasthan vs. Union of India and Another [(2012) 6 SCC 1].

5.4 Mr. Mehta stated that the government has argued about pendency of multiple FIRs and Youtube videos of gurukul children on the propagation of the third eye, the great escape of Swami Nityanand to Barbados to justify shutting down of a school. Such act is nothing but prejudicial, smacking of malice and in bad faith.

6. Mr. Rasesh Sanjanwala, learned Senior Counsel submitted that children have also certain rights which flow from Article 21A of the Constitution of India. He relied on Sections 3, 8(g), (h), 12(c) and 18(3) of the RTE Act and submitted that in accordance with Sections 8(g) & 8(h) the child is entitled to good quality of elementary education. According to Section 10 of the Act, it shall be the duty of every parent or a guardian to admit a child or a ward in the neighbourhood school. Relying on sub-section (3) of Section 18 of the RTE Act, and the proviso thereto, Mr. Sanjanwala submitted that while passing an order of withdrawing recognition, such order shall contain a direction as to which of the neighbourhood school the children studying in the derecognised school shall be admitted. The impugned order does not mention the same. The order of 05.12.2019 and the affidavit-in-reply of the State does not suggest of any measure having been taken by the State of accommodating students in the neighbourhood schools. The action of withdrawal of affiliation and recognition has been motivated by extraneous consideration.

7. Mr. K.V. Shelat, learned advocate has vehemently supported the order passed by the Board impugned in the petitions. Mr. Shelat made submissions on the following five broad categories :

(I) NOC is a mandatory requirement of CBSE affiliation;

(II) Fraud vitiates everything;

(III) It is the case of the school itself that there is no NOC. This itself is an admission of charge and therefore requires no further investigation;

(IV) Principles of natural justice have been complied with;

(V) There is suppression of material facts relating to the NOC from this Court and forged documents have been produced.

7.1 Mr. Shelat submitted that the school has at all stages and pleadings maintained that they have never submitted any NOC nor have they ever been issued an NOC from the State Government. It is undisputed that at no point in time did the State Government grant valid NOC to the school. He has relied on the sequence of the dates of the applications made till the NOC was rejected. He submitted that when the school applied for provisional affiliation upto Secondary Level by online application dated 21/6/2010, it was aware of the requirement of NOC under Rule 3.3(i) of Affiliation Bye-Laws, 1988 and therefore they wrote 'Yes' under whether they have NOC and uploaded plain paper saying NOC is under process.

Since there was no NOC and there were other deficiencies, application was rejected on 20/10/2010. Rejection Order allows the school to apply afresh upon removal of deficiencies.

7.2 Mr. Shelat further submitted that according to the School no substantial development took place between rejection dated 20.10.2010 and grant of Composite Provisional Affiliation on 08.08.2012 and the school has at all stages including in their reply to Show Cause Notice, subsequent representation, petitions before the Delhi and Gujarat High Courts and other pleadings maintained that no NOC was received by them or submitted by them or their the then Principal Ms. Anita Dua to CBSE. He submitted that the school in a brazen suppression of material facts has stated complete falsities on oath in an endeavour to misguide this Court. The school was aware that while seeking provisional affiliation it must have an NOC from the State. Despite such a pre-requisite, an application for provisional affiliation on 21.06.2010 was made and inspite the earlier rejection of the NOC, based on the forged certificate dated 27.07.2010, the provisional affiliation application was pursued and the same was granted. This is evident from the letters dated 16.05.2012, 17.05.2012 report of the Desk Officer, appointment of the inspection committee on 29.05.2012 and the inspection committee report dated 10.07.2012 on the basis of inspection carried out on 22.06.2012. Even as far as the land issue is concerned, there was a breach of condition no. 4 by which the Board would not allow any transfer of property from one Trust, Society or management to the other. The school got an affiliation on the based of a forged NOC. The requirement of a prior NOC can never be diluted by Section 18 of the RTE Act. The contention that since the application of the petitioner was on 04.04.2011 and that the circular of 08.07.2013 would apply when the requirement of NOC was done away with is misconceived. The requirement of NOC in context of the 1988 and the 2018 bye-laws is only for initial affiliation which was granted on 08.08.2012 and therefore on that date it was a sine qua non to have an NOC.

7.3 Mr. Shelat submitted that the order impugned has been passed after following due process in terms of Chapter 12 (Penalties) and Chapter 13 (Procedure for Imposition of Penalties). He submitted that the order of withdrawal of affiliation is a reasoned order supported by documents. The school was given adequate time to respond to the show cause notice. It is the school's assertion multiple times that they have never submitted any NOC which fact alone disentitles it the affiliation which the school has managed to get by submitting a forged and fabricated document. Personal hearing cannot be read into the bye-laws. The affidavit of Ms. Anita Dua has no evidentiary value.

7.4 Mr. Shelat submitted that the order is beyond the scope of show cause notice is misconceived. There was a specific charge framed that the school has managed to get affiliation without ever being issued NOC and that the school has submitted an NOC of 27.07.2010 which was never issued by the state government. The school was specifically informed of the charge and it was the school's own admission that there was nowhere an NOC and therefore hearing would not have made any difference.

7.5 In support of his submissions, Mr. Shelat has relied on the following decisions:

* Gorkha Security Services v. Government (2014) 9 SCC 105 at Paras 11, 16, 17, 20 - This judgment is followed in State Bank of India v. Jah Developers (2019) 6 SCC 787 at Paras 8, 15.

* Sunil Oraon v. CBSE (2006) 13 SCC 673 at Paras 23, 24 -

* Sarvepalli Radhakrishnan University v. Union of India (2019) 14 SCC 761 at Paras 12, 13, 16 to 19, 20.3 –

* Chairman & Managing Director, V.S.P v. Goparaju Sri Prabhakara Hari Babu (2008) 5 SCC 569 at Paras 16 to 19 - This judgment is followed in Mehulbhai Ranchodbhai Makwana v. State of Gujarat 2009 SCC OnLine Gujarat 3771 at Para 13.

* Mahavir Institute of Medical Sciences v. Union of India (2019) 14 SCC 794 at Paras 6 to 8 -

* A.P. Christians Medical Educational Society v. Govt. of Andhra Pradesh (1986) 2 SCC 667 at Para 10 and State of Tamil Nadu v. St. Joseph Teachers Training Institute (1991) 3 SCC 87 at Paras 5, 6 -

* CBSE v. Tushar Welfare Society 2005 SCC OnLine Del 1338 at Paras 36, 37, 45, 46, 48, 61, 66 - This judgment has been confirmed in appeal by a three- judge bench of the Supreme Court in Independent Schools Federation of India v. CBSE SLP (C) No. 6030/2006.

7.6 Summing up his conclusions, Mr. Shelat submitted that the School has by way of brazen suppression of material facts from the Court and by playing fraud, forgery and misrepresentation on the CBSE approached this court to correct the wrongs that have been committed by them in gross violation of rules and regulations. The school which is found to have been not eligible for CBSE affiliation has made deception and fraud for getting the affiliation of CBSE and have disentitled itself from continuing CBSE affiliation and therefore when CBSE after giving Show Cause Notice and opportunity to reply, and due consideration of such illegal and condemnable statutory breach of affiliation bye-laws of CBSE by the Petitioner School and its management, has passed appropriate order dated 30.11.2019/01.12.2019 withdrawing the affiliation of CBSE fraudulently obtained by the School, the School with such unclean hands is not entitled to seek writ of this Court or any other relief as prayed for.

8. Ms. Manisha Lavkumar Shah, learned Government Pleader relying on the affidavit-in-reply filed by the District Education Officer submitted that it is an admitted fact that there is an acute absence of a valid NOC and therefore an obvious presence of a forged NOC. NOC is a pre-requisite for affiliation with the CBSE. Inviting the attention of the Court to the policy of the State dated 05.01.2009, Ms. Shah submitted that the policy envisages that a school which wants affiliation to the CBSE must have a valid NOC.

8.1 She submitted that admittedly, there is an absence of a Building Use permission from a local authority. Admittedly, the premises of the school have been parted for Yogini Sarvagyanapeetham Ashram run by one Swami Nityananda. An FIR has been lodged against him for kidnapping and rape. The godman is absconding. It is in such circumstances that the orders have been passed. She relied on bye-law 3(1) of the 1988 bye-laws to submit that the school seeking provisional affiliation must have a formal prior recognition. The petitioner applied on 11.09.2009 in the form prescribed. On 21.10.2009, the government intimated to the petitioner that action on the NOC will be taken after receiving B.U permission and other documents. Without availing NOC the school applied to the CBSE on 21.06.2010 for availing affiliation. Though the school did not have an NOC, it asserted that the procedure was in progress.

8.2 Ms. Shah submitted that on 20.10.2010, the application of the petitioner seeking affiliation from the CBSE was rejected on the ground that the NOC was not submitted. On 01.10.2011, when the State sought further documents from the Gujarat Board and the Board in turn demanded such documents, the school applied for a fresh NOC on 21.11.2012. That application was rejected on 04.02.2012 on the ground that the petitioner did not have NA permission. The principal of the school sought recommendation from the Minister on 08.02.2012. The State Government rejected that proposal for provisional NOC on 28.03.2012. She submitted that it is surprising that though the affiliation by the CBSE was rejected on 20.10.2010, and the proposal for NOC was rejected on 04.02.2012 and 28.03.2012, formal affiliation was granted by CBSE on 08.08.2012. This affiliation was granted pursuant to an application dated 21.06.2010 when that application was infact rejected on 20.10.2010.

8.3 Media reports appeared on 16.11.2019 on one Swami Nityanand, a wanted absconding accused for kidnapping and rape. Based on the media reports CBSE issued a letter on 21.11.2019 asking the Directorate of Schools to inquire as to how the petitioner could lease the land to any other institution. Inquiry was also sought on the status of NOC granted to the school. Based on such letter, the Director conducted an inquiry and a report was prepared on 22.11.2019 holding that the petitioner school had leased land to NDT and that the State had never issued an NOC. The CBSE therefore issued a show cause notice on 23.11.2019. The school responded. The then principal denied the availability of NOC. Denial was made on submissions of parting the school premises in favour of the Ashram.

8.4 Based on these facts, she submitted that NOC is a sine qua non for affiliation. Admittedly the petitioner was not granted any NOC by the State. The CBSE had rejected the petitioner's application dated 21.06.2010 on 20.10.2010 on the ground that there was no NOC. The affiliation of 08.08.2012 is granted on the basis of an earlier application which was already rejected. The records of the CBSE showed an NOC of 27.07.2010. The State never had issued such NOC. It was an obvious case of fraud.

8.5 Ms. Shah further submitted that there was no BU permission. On investigation by the DEO, it was found that there was an Ashram operational on the premises of the school. 24 disciples of the Ashram were enrolled with the school. Transfer certificates of 18 students did not exist. Birth certificates of 8 students were unavailable. 4 students were foreign nationals. Apart from an FIR lodged against the school for a forged NOC, there was an FIR against the godman.

8.6 Ms. Shah further submitted that on 18.11.2019, the DEO team visited the school premises seeking information. None was provided. Rojkam was prepared. The Principal sent an email on the same day with incomplete details. On 19.11.2019, again a team visited the premises seeking information, the school did not cooperate. A show cause notice was issued by the DEO on 19.11.2019 asking the school to submit documents failing which it would be understood that adverse inference would be drawn and orders passed. Information was sought on 21.11.2019, the school did not cooperate. A committee was constituted on 25.11.2019 which inspected the school, sought information on 28.11.2019. The school asked for time till 02.12.2019. From 22.11.2019 to 27.11.2019 no information was given. An email was addressed by the DPEO on 28.11.2019. On 02.12.2019 when the petitioner did not cooperate, it was asked to submit documents by 2 pm. The school remained hostile and therefore the order of derecognition was passed.

8.7 Ms. Shah relied on bye law no. 14.23 of CBSE to submit that the school should not part away with any land without getting details informed to the Board. Reliance was placed on the decisions of the Apex Court to submit that when admittedly giving hearing would not make any difference principles of natural justice need not be complied with.

8.8 In support of her submissions, she has relied on the following decisions:

(a) State Bank of Patiala & Ors vs S.K.Sharma reported in 1996 SCC (3) 364;

(b) M.C. Mehta vs Union Of India reported in 1999(6) SCC 237:

(c) Rajendra Singh v. State of M.P. and Others reported in 1996(5) SCC 460:

(d) M/s Dharampal Satyapal Ltd. vs Dy. Commr. Of Cen. Exc. & Ors reported in 2015(8) SCC 519:

(e) The Goa State Cooperative Bank Ltd. vs Shri Krishnanath A. (dead) through lrs. and Others, decision dated 20.8.2019 in Civil Appeal No.10596 of 2010.

8.9 So far as Special Civil Application No. 3748 of 2020 is concerned, Ms. Shah submitted that in addition to the averments which have been answered on merits with regard to the challenge to the impugned orders, the petition is misconceived because the State has taken over the management of the school on the request and the insistence of the parents. She submitted that the petition is a sponsored petition. State government through its competent authority assures that it shall assist the students in taking all steps necessary to protect the academic interest of the students in order to ensure that no prejudice is caused in their transposition to other schools. In fact 51 students of the 359 have already taken admission in other schools and admissions of 45 other students is already in progress.

8.10 In Special Civil Application No. 5161 of 2020, Ms. Shah has raised an additional contention that the State has substantial information that the petition is collusive. The school had filed the very same petition with the same prayers on 22.12.2019. The school filed an interim application for staying the order of derecognition. The State Government appeared on 25.02.2020 and the Court adjourned the matter to 19.03.2020. The present petition was registered on the same day in this Court i.e. 25.02.2020. On 26.02.2020, Notice was issued and promptly on the next day the school withdrew its petition and filed the present one. The school immediately thereafter moved this Court by filing Special Civil Application No. 5670 of 2020. She invited the attention of the Court to the averments made in the CMA for withdrawal filed before the Delhi High Court wherein it was stated by the school that the school itself had challenged the orders before the Delhi High Court but since no significant progress has been made, the present petition has been filed.

8.11 To the submissions of the learned advocate for the petitioners for the parents/children she submitted that the provisions of the RTE Act make it clear that what is contemplated under the Act is a neighbourhood school to the residence of the child and not the neighbourhood of the school which is derecognised. Relying on the provisions of Section 3 read with Sections 2(d) and 2(e) of the RTE Act, she would submit that the DPS is a self financed school. RTE admissions are on the basis of the child's financial/income criteria. Such children as the petitioners will not therefore be governed by the provisions of the Act. Best endeavours are being made to accommodate students at an average distance of 14 kms. Anandniketan is one of the schools and the CBSE is being persuaded to sanction additional vacancies. She further submitted in the context of the petition by the school that though there may not be a provision for taking over management, Section 33 of the Secondary Education Act does provide for such a provision which can be applied to the present school.

8.12 The petition of the school suffers from the suppression of facts that on a subsequent application for recognition, the same were rejected. Those orders are a subject matter of challenge by filing appeals before the competent authorities. Such challenge is made and is not disclosed in the petitions. The school is registered under Section 25 of the Companies Act. Bye-law 2.1.8 contemplates that only a society registered under a Societies Registration Act can be considered for recognition. The school is least concerned about the students inasmuch as by way of an amendment the worry seems to be the large outstanding fee and transport cost and not the welfare of the students.

8.13 Ms. Shah submitted that it is not a case of derecognition under the RTE Act but derecognition in exercise of powers under Rule 109 of the Gujarat Primary Education Rules.

Admittedly, today the school has no Building Use permission. The school cannot claim violation of principles of natural justice when admittedly it is so recorded in the Rojkam that the Principal has clearly stated that he does not want to say anything further.

9. Having considered the rival submissions so extensively made at the Bar by the learned counsels for the respective parties, the Court is to consider, the legality and validity of the three orders passed by the respective respondents i.e. the CBSE which by its order dated 30.11.2019/01.11.2019 has withdrawn the affiliation of the school; the DPEO which by order dated 02.12.2019 has cancelled the recognition of the school and that of the State Government dated 05.12.2019 by which the management of the School has been taken over by the State upto 31/3/2020. Let us first consider the order dated 30.11.2019/1.12.2019 which has been challenged on several grounds as made out from the submissions of the petitioners and as so opposed by the State and the CBSE.

10. First and foremost challenge made to the order is on the ground that, the order passed by the CBSE even if so passed exercising administrative functions, could not have been passed without complying with the principles of natural justice. According to the petitioners, the order resulted in civil death of the School and therefore the same could not have been done without providing personal hearing. Moreover, according to the School, as is evident from the order, reliance has been placed on the materials that have not been supplied and the said material has been obtained behind the back of the petitioner school. Essentially the school's submission is that reliance is placed on an inquiry report dated 22.11.2019 which the Board obtained from the State without supplying a copy to the School. Secondly the case of the Board in the impugned order is that even when the Inspection Committee inspected the School on 22.06.2012, the School had submitted a forged NOC dated 27.7.2010. The copy of the Inspection Report and the documents are not supplied to the school.

10.1 The second limb of the arguments on the order failing the test of principles of natural justice was that the same has been passed on materials beyond the Show Cause Notice. The Show Cause Notice dated 23.11.2019 never referred to the Inspection Committee's Report. The order based on such reasoning was therefore bad. The order was assailed on the ground that the reasons which were absent in the order cannot be improved by way of an affidavit by extensively relying and producing materials which were never put to the School.

11. Let me first therefore test the legality of the impugned order of the CBSE dated 30.11.2019/01.12.2019 on these counts before delving, if need be, to test the validity of the order on merits. Through the Affidavit in Reply filed by the State and the CBSE, the Court has been extensively taken through the letter dated 16.05.2012. According to the Board and the State, the letter dated 16.05.2012 was written after the first rejection and in context of the affiliation on 20.10.2010 where after rejection of the NOC by the State in March 2012, along with the application for an NOC made in 2012, the school filed a copy of the NOC dated 27.7.2010 at Annexure 3. On 17.5.2012, the Desk Officer of the CBSE prepared an internal note reporting that the earlier deficiencies appeared to be removed and that the Board may therefore appoint an Inspection Committee. The letter dated 29.5.2012 of the Inspection Committee has been referred to and relied upon. So also the Inspection Committee's report dated 22.06.2012 is produced with the affidavits where according the Committee the erstwhile principle produced the NOC of 27.07.2010. The same was therefore also attested by the Manager of the School and the Principal as required by the Inspection Committee norms which is now a matter of dispute. Based on this, an Inspection Report dated 10.7.2012 was prepared and affiliation dated 8.8.2012 was granted.

11.1 The question therefore is, were these documents ever put to the School's notice as material available to come to a conclusive finding by the CBSE, that the School had produced a forged document. Moreover perusal of the impugned order reveals that there is heavy reliance on the Inquiry Report submitted by the State on 22.11.2019. Reading of the Inquiry Report dated 22.11.2019 submitted by the Commissioner Of Schools without a copy being made available to the School extensively refers to the sequence of events as above and records a finding that:

"From the above facts it is evident that the No Objection Certificate of the State Government vide MSB-1210-1965-CHH dated 27.07.2010 referred in your letter dated 21.11.2019 was never issued by the Education Department of the State Government. Apparently it is a case of criminal misrepresentation, forgery and fraud. It is requested that appropriate action may be initiated at your end,including urgent cancellation of affiliation."

11.2 Therefore what is evident on reading the impugned order of the Board is that it relies on a letter of the State severely indicting the school of misrepresentation, forgery and fraud based on inspection of records. The records which have been referred to are the letters and documents based on which the inspection committee prepared its report. The Show Cause Notice dated 23.11.2019 did not inform the School of there being an Inspection Report with annexures where according to the Board and the State the School had presented the forged NOC of 27.7.2010, through its Principal Mrs Anita Dua. The NOC was thereafter also attested by the Principal and the Manager. The School's case was that the NOC that was subsequently provided to the school after the show cause notice through an email by the CBSE was a copy of the NOC that did not bear any signature of either the Manager or the Board's stamp.

11.3 On merits, the stand of the School is that it never applied on the basis of an NOC and that there was therefore no NOC. That the affiliations were purely based on the recognition granted by the State on 21.3.2012. The stand of the contesting Board and State is that a forged NOC was supplied. They seek to justify this on the basis of extensive materials on affidavits. Moreover, according to the Board and the State when admittedly there was no NOC the affiliation was without one which was a pre-requisite and therefore on the face of such clear admission, there was no need to hear the School. Fraud was writ large and therefore it was a forgone conclusion and therefore an inquiry also would have made no difference.

12. It shall be pertinent to peruse the relevant bye-laws on which reliance is placed, in order to appreciate the contentions. The same are as under:

"3. Any educational institution in India or outside India which fulfils the following essential conditions (without which the case cannot be processed) can apply to the Board for affiliation :

(i) The School seeking Provisional Affiliation with the Board must have formal prior recognition of the State/U. T. Govt. Its application either should be forwarded by the States Govt. or there should be a No Objection Certificate to the effect that State Government has no objection to the affiliation of the school with the CBSE. 'No Objection Certificate' once issued to any school will be considered at par even if it prescribes a specific period or *stage unless it is withdrawn. Condition of submitting a No Objection Certificate will not be applicable to categories 3.1 (i) to (iv).

(ii) (a) The School/Society/Trust /#Company registered under section 25 of the Companies Act, 1956 or the Congregation or other Religious Body controlling the Society/Trust/# Company registered u/s 25 of the Companies Act, 1956 managing the school must have about two acres (or as otherwise permitted measurement) of land and a building constructed on a part of land and proper playgrounds on the remaining land.

AFFILIATION BYE-LAWS 2018

1.3.1 "Affiliation" means formal affiliation of a school with the Board for the purpose of preparing students for admission to the Board's examination. It includes affiliation under all categories and of all types.

1.3.2 "Composite Affiliation" means Affiliation for running all Classes/Standards starting from and to the classes for which such affiliation has been granted.

XXXX XXXX XXXX

1.3.4 "Extension" means extension of period of Affiliation granted to the school by the Board.

XXXX XXXX XXXX

1.3.15 "Senior Secondary School" means school preparing students for both the Secondary (Class-X) and Senior School Certificate (Class-XII) Examinations of the Board or for Senior School Certificate (Class-XII) Examination only.

1.3.16 "Secondary School" means school preparing students for the Secondary School (Class-X) Examination of the Board.

XXXX XXXXX XXXX XXXX

1.3.25 "No Objection Certificate" means a letter issued by the Education Department of the State/Union Territory in respect of a School situated in the State/Union Territory for Affiliation of the school to the Central Board of Secondary Education (CBSE).

XXXX XXXXX XXXX XXXX

BYE-LAW 2. NORMS FOR AFFILIATION 2.3.4 RECOGNITION FROM THE RESPECTIVE STATE GOVERNMENT

The Schools seeking affiliation with the Board shall submit formal prior Recognition Certificate from concerned State Education Department as per extant rules and provisions contained in RTE Act-2009.

2.3.5 NO OBJECTION FROM THE RESPECTIVE STATE GOVERNMENT

The Schools mentioned under clauses 2.15, 2.1.6, 2.1.7 and 2.1.8, seeking affiliation with the Board shall submit formal prior "No Objection Certificate" to the effect that State Government has no objection to the affiliation of the School with CBSE. No Objection Certificate once issued to any school will be considered at par even if it prescribes a specific period and/or level unless it is withdrawn.

BYE-LAW 10. PROCEDURE RELATED TO SUBMISSION, PROCESSING OF APPLICATIONS AND APPROVALS

XXXXX XXXXX XXXXX

10.1.6 Incomplete applications and the applications submitted without required documents will be rejected and no further action will be taken by the Board.

XXXXX XXXXX

XXXXX

10.1.10 If the application for affiliation of school is found in order as per provisions of these byelaws, the Board will appoint an Inspection Committee for physical inspection of the School in order to assess the suitability of the school for affiliation.

10.1.11 The inspection of schools will be conducted by a Committee constituted as per provisions contained in chapter-11 of these byelaws.

10.1.12 The School will keep all documents ready and make them available to the Inspection Committee at the time of the Inspection. The Inspection Committee will submit the report to the Board after physically verifying all the requirements of affiliation as per Affiliation Bye Laws.

XXXXX XXXXX XXXXX

10.1.16 In case any of the statements made by the school in the application are found to be false or any of the documents uploaded by the school are found to be fake/forged/fabricated/tampered, the application of the school is liable to be rejected and the school shall be liable for imposition of any of the penalties mentioned in clauses 12.1.1 to 12.1.10 in a manner as deemed fit by the Board in addition to the criminal action without any notice to the Board.

BYE-LAW 12 PENALTIES

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12.1.9 Withdrawal of Affiliation.

12.1.10 Any other penalty deemed appropriate by the Board.

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XXXX

12.2.4 Shortcoming in the essential requirements for affiliation laid down in the affiliation bye-laws detected at any stage.

12.2.5 On withdrawal of Recognition by the State Government.

12.2.6 On withdrawal of No Objection Certificate issued by the State Government.

BYE-LAW 13 PROCEDURE FOR IMPOSITION OF PENALTIES

XXXXX XXXXX

XXXXX

13.3 After verification of facts the Board shall serve a "Show Cause Notice" to the School setting out the reasons for the proposed action.

13.4 The school will be required to submit its reply along with the documentary proof, if any, to the board in not more than 30 days from the date of receipt of the notice.

XXXXX XXXXX

XXXX

13.6 The reply of the school submitted to the board will be scrutinized by the board in the light of material available on records and the information received/gathered from various quarters and the action regarding closing of the complaint or imposing penalty will be taken in accordance with the provisions of these bye-laws.

XXXXX XXXXX

XXXX

13.14 The future and welfare of students studying in the school will be kept in mind while imposing penalty on the school.

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XXXXX

13.17 In cases mentioned in clauses 12.2.5 and 12.2.6, the Board may withdraw affiliation without giving any notice under Clause 13.3 to the school."

12.1 Essentially bye law 10.1.16 has been relied in the impugned order to press that incomplete application was filed and as documents uploaded were found to be forged, there was shortcoming in the essential requirement for affiliation and therefore affiliation was withdrawn. The procedure for imposing penalties is provide for in Bye law 13. Bye-law 13 prescribes that the Board after verification of facts shall serve a show cause notice to the school and the school shall submit a response in not more than 30 days. The reply of the school will be scrutinized in light of the material available and further action taken. The future and welfare of the students will be kept in mind while imposing penalty.

13. What is apparent from perusal of the facts that have gone into the decision-making process is that based on media reports that appeared on 16.11.2019 on the issue of Swami Nityanand, the Board addressed a letter on 21.11.2019 to the Director of Schools to inquire into the land use of the school and status of NOC. The State on 22.11.2019 sent a report. The report strongly indicted the school of misrepresentation forgery. Based on a report submitted within a day of the request made, a show cause notice was issued on 23.11.2019 and on a reply filed with a specific request for personal hearing, the very next day the order of deaffiliation was passed. Reliance was placed in the deaffiliation order on the report of 22.11.2019 and Inspection Committee's Report of 22.6.2012. The show cause notice did not speak of the Inspection Report so the school was not even aware of such a report being a part of the mind-set of the CBSE in taking the impugned decision.

14. At this juncture, it shall be relevant to peruse the decision relied upon by learned advocate for the respondents in the case of S.K. Sharma (supra) and the same is reproduced hereinbelow:

"28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and fast formulae. As said in Russell c. Duke of Norfolk [1949 (1) All.E.R.109] way back in 1949, these principle cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. [See Mahender Singh Gill v. Chief Election commissioner (1978 (2) S.C.R.272)]. The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. [See A.K.Roy v. Union of India 1982 (1) S.C.C.271) and Swadeshi Cotton Mills v. Union (1981 (1) S.C.C.664)]. As pointed out by this Court in A.K.Kraipak L Ors. v. Union d India & Ors. (1969 (2) S.C.C.262), the dividing line between quasi-judicial function and administrative function [affecting the rights of a party] has become quite thin and almost indistinguishable a fact also emphasized by House of Lords in C.C.C.U. v. Civil Service Union [supra] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the Cases it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/no hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India (1984 (3) S.C.C.465). There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin]. It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression [Calvin v.Carr]. But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [Managing Director, E.C.I.L. v.B.Karunkar] or without affording him a due opportunity of cross-examining a witness [K.L.Tripathi] it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct - in the light of The above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunkar should govern all cases where the complaint is not that there was no hearing [no notice, no opportunity and no hearing] but one of not affording a proper hearing [i.e., adequate or a full hearing] or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touch-stone of prejudice as aforesaid.

32. Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.

33.6 While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

33.7 There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

[Emphasis Supplied]

14.1 On similar lines, decisions in the cases of Gorkha Securities (supra), Rajendra Singh (supra); M.C.Mehta (supra) have been relied upon by the Counsels for the Board and the State to support their submissions that the rule of violation of principles of natural justice cannot be made in a strait jacket formula. At times public interest and emergent situation would demand dispensing with such procedure and if the restoration of an order would tantamount to restoring an order which perpetuates illegality then the order should not be set aside in exercise of powers under Article 226 of the Constitution Of India.

14.2 In the present case the action sought to be taken was deaffiliation of a school and the same was done mid-session, to be precise in the month of December, 2019 and the academic session ending in March, 2020. The decision was based on a report of the State dated 22.11.2019 on a request made by the CBSE on 21.11.2019 (within a day) and a copy of which was not supplied to the school. The order relied on an Inspection Report which was not even referred to in the show cause notice and therefore apart from it not being supplied was not a part of show cause notice. True it is that the School did not have a right to ask for a 30 day period but the issue of deaffiliation could not be weighed in scales akin to national security or public interest to warrant such expeditious swift action without following the basic tenets of principles of natural justice. In the very decision in the case of S. K. Sharma (supra), the Apex Court has observed that where there is serious prejudice caused to the noticee, an opportunity of fair hearing must be given. In the present case a school was being deaffiliated affecting the future of approx 900 students on the basis of a document which in the perception of the Board was forged. Reliance was placed on material which was never supplied to the school which was the basis of the order. Serious prejudice was therefore evident due to non supply of such material.

"There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin]. It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression [Calvin v.Carr]. But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [Managing Director, E.C.I.L. v.B.Karunkar] or without affording him a due opportunity of cross-examining a witness [K.L.Tripathi] it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct - in the light of The above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunkar should govern all cases where the complaint is not that there was no hearing [no notice, no opportunity and no hearing] but one of not affording a proper hearing [i.e., adequate or a full hearing] or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touch-stone of prejudice as aforesaid."

[Emphasis Supplied]

14.3 In the case of Binapani Dei (supra), the Supreme Court has categorically held that whatever material is relied upon must be supplied. The stand of the State and the CBSE that the Inspection Report itself had a clause that it would not be supplied to the school would not help their case. The foundation of the impugned order to conclusively hold that the forged NOC is produced is on the basis of the Inspection Report prepared on the basis of letters dated 16/5/2012;

Internal Note dated 17.5.2012 of the Desk Officer; Inspection Report committee inspection on 22.6.2012 and Report of 10.7.2012 which are being now produced for the first time through the affidavits of the CBSE and the State suggesting that the NOC dated 27.7.2010 was annexed to the application for affiliation. That it was at annexure 3, the internal note of the Board referred to the deficiencies being resolved relying on the NOC. All these went into the decision-making process and now being produced for the first time with the affidavit.

14.4 Similarly the Inquiry Report damning the school of misrepresentation and forgery and the material used to arrive at such a conclusion are never made available to the school. Firstly the inspection report which was the foundation of the order was never referred to in the show cause notice. The Hon'ble Supreme Court in the case of Maheshwari Enterprise (supra) has held that when the show cause notice is a foundation of the order, reliance of ground not indicated in the notice cannot form a part of the order. So also is the case in SACI Allied (supra). The relevant observations in the case of Maheshwari Enterprise (supra) are reproduced herein below:

"A short point involved in this writ petition relates to making out of a case by the adjudicating officer beyond the show cause notice. In other words, whether the adjudicating officer or the appellate authority or the tribunal can travel beyond the case made out in a show cause notice.

...

As indicated above, the point which is involved in this writ petition is whether a new or foreign case can be made out by an adjudicating officer without affording an opportunity to the noticee to defend the charge. In a precedent paragraph, this Court have reproduced the case made out by the authorities in paragraph 7 thereof wherefrom my endeavour has failed to find out that any case of violation of rule 3(3) of the said statutory rules is made out.

...

My attention is drawn to an appeal filed by the CESTAT where the petitioner has categorically taken a plea that the findings recorded by the adjudicating officer, is outside the purview of the show cause notice. The issuance of the show cause notice is not a mere formality or casual exercise. It is a foundation of proceeding initiated against the noticee and inviting the noticee to disclose his defence. Therefore, the show cause notice must clearly, lucidly and explicitly contains the offences and/or charges prima facie found against the noticee in order to give the opportunity to disclose the statement of defence on the aforesaid allegation. Any extraneous matter which was never made a foundation for initiation of the proceding cannot be taken into account as it would amount to punishing a person without affording an opportunity to meet the same. In other words, if a person is punished on a ground not indicated in the show cause notice, he has no occasion to plead the defence against such allegation and, therefore, an order of punishment offends the principles of natural justice. Whether the authority can travel beyond the case made out in the show cause notice is answered by the Supreme Court in case of Reckitt & Colman of India Ltd. v. Collector of Central Excise reported in 1996 (88) E.L.T. 641 (S.C). in these words:

...

"21. Before concluding, we may mention that, in the present case, the second and the third show cause notices are alone remitted. The first show cause notice dated 21.5.1999 is set aside as time-barred. However, it is made clear that Rule 7 of the Valuation rules, 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule."

In view of the ratio laid down in the above noted reports, it is no longer res integra that the show cause notice is the foundation of a proceeding initiated against the noticee and invocation of any rule which does not find place in the said show cause notice is impermissible and cannot withstand on the anvil of legal parameters.

This Court does not find from the show cause notice that there is any reflection of rule 3(3) of the said rules which could only see the light of the day in the order of the adjudicating authority. Though Mr. Das was much vocal in saying that during the recording of the evidence of the officer of the noticee, the offence to the said provision has been recorded but this Court does not find the aforesaid submission to be tenable. If in the preceding page of the show cause some recording which may justify the invocation of the aforesaid rules was apparent, there is no difficulty in including the aforesaid violation in paragraph 7 thereof where the authority jotted down the violation of the specific provision of the Act."

[Emphasis Supplied]

14.5 The Apex Court in the case of Nagarjuna Construction (supra) has held as under:

"12. In the counter-affidavit it was also submitted that the appellants had failed to produce documentary evidence. The Deputy Director had acted on the basis of information furnished by BHEL. The High Court referred to BHEL's letter dated 8.3.2000 whereby the details of total quantities of filling materials supplied by sub contractors were furnished. According to the data, various mines had been supplied as filling materials. The High Court noticed that there was no evidence to show that seigniorage fee had been paid in respect of filling material. ...

20. The basic stand of the appellants in the appeals is that the basic principles of natural justice have not been followed in the present case. The authorities have acted on certain materials which were collected behind the back of the appellants and the reports submitted by certain authorities. The High Court's conclusion that no prejudice was caused by non supply is really a conclusion without any foundation. Finally, in view of the accepted stand of the State Government in the earlier writ petitions it would not be open for the State Government to take diametrically opposite stand to levy the seigniorage fee. ...

31. The basic principles of natural justice seem to have been disregarded by the State Government while revising the order. It acted on materials which were not supplied to the appellants. Additionally the High Court for the first time made reference to the report/inspection notes which was not even referred to by the State Government while exercising revisional power.

...

33.

"[13] Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

[14] The expressions "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.

[15] The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue.

These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works (1963 (143) ER 414), the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat". Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

[16] Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

[17] What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U. K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt 'to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give 'a full and fair opportunity' to every party of being heard.

[18] Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows:

"Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari".

Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:

"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice". Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'.

[39] Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non- pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

34. We, therefore, set aside the impugned order of the High Court. The matter is remitted to the State Government to re-consider the matter after supplying to the appellants copies of reports/inspection notes on which the Department case rests. It shall also consider the effect of the concession made by the Department in the earlier rounds of proceedings before the High Court."

15. What is evident is that the CBSE has acted on the report/letter dated 22.11.2019 and Inspection Committee report dated 22.6.2012 both which were materials acted upon but not supplied to the school. From the affidavits in reply filed by the CBSE and the State, they have sought to justify that the NOC submitted by the School was in fact forged.

Extensive reliance is placed on documents which have been referred to in the earlier part of this decision. These form part of the affidavits in reply. These documents not supplied cannot supplement reasons and it is well settled that if the order is otherwise without reasons, an affidavit cannot be a supplement to such reasonings. Refer: Mohinder Gill (supra).

16. That from the facts therefore it is clear that on merits the case of the School is that the NOC was never supplied as there was no NOC. Applications for NOC were followed up and rejected even after the alleged forged NOC. On merits a case is canvassed that an NOC was inter-changeable to recognition and it was on the basis of recognition that the affiliation was granted. However the Board has de-affiliated the School based on a conclusive finding that a forged NOC was produced. Apart from the School denying having secured an NOC at all, in context of the allegation of an NOC being on record which in the perception of the Board and the State is forged and extensive material is relied upon to support their perception of fraud, such a conclusion without putting to notice the school and making these documents such as the ones relied in the affidavits in reply as the letter of 16/5/2012 which is perceived by the Board as the first line of misdirecting the Board, whereas by the school otherwise, the desk officer's note dated 17/5/2012; Inspection Committee's Report etc ought to be supplied before a decision to de- affiliate a school and causing its civil death is taken.

16.1 The order dated 30.11.2019/1.12.2019 suffers from the vice of being violative of Article 14 of the Constitution Of India. The order has been passed on extraneous material which was not part of the show cause notice. Materials and documents relied upon in decision-making process which say that the School is guilty of misrepresentation have not been supplied to the school. The order of de-affiliation is a situation where the School is shut and the students studying therein are left to look for other schools.

17. The objective of the entire process of following principles of natural justice is to ensure a fair hearing, a fair deal to the person whose rights are going to be affected. Whichever is the case, it is from the standpoint of fair hearing - applying the test of prejudice that the decision must have been taken. This is certainly not a case or a situation where the observance or requirement of prior notice or hearing may defeat the very proceeding. The bye-laws contemplate hearing and therefore reasonable opportunity and fair hearing ought to have been given. Personal hearing may not be the rule in every case. The CBSE Counsel relied on a decision in the case of Mahavir Institute Of Medical Sciences and Another (supra) and also on principles of Section 58 of the Evidence Act to submit that in view of the stand of the School that the NOC was never submitted it was an admitted stand that there was no NOC and therefore the case was open and shut against the School is incorrect. Extensive material by way of affidavits and documents are produced by the Board to push its case that the Court, on the basis of such material hold that the certificate dated 27.7.2010 is produced by the School and the certificate is a forged document.

17.1 This Court in exercise of powers under Article 226 of the Constitution of India is not inclined at this stage to undertake an investigation or inquiry to decide the authenticity of the NOC dated 27.7.2010 or into the School's stand that the same was never produced. The State has already filed an FIR and the criminal machinery will investigate and decide on the aspect of forgery of the document. The Court therefore is not inclined to look into the evidence and take a call in a writ petition under Article 226 of the Constitution of India.

17.2 However, the Court is of the view that the Board and the State in relying on the documents which now form part of the affidavits, ought to have put the school to notice on such material and having done so without providing copies and documents and relying on materials without furnishing them to the School is an exercise which violates the principles of natural justice and is therefore on this ground alone the Order of deaffiliation is bad more so when the order was passed mid- term without considering the future of the students as stipulated in the bye-laws of the Board.

17.3 There was no need for the CBSE to rush through into taking the decision of deaffiliation particularly when the academic session was still in progress and was to end in March 2020. The fact that the State has had to intervene and take over the control of the school till 31.03.2020 itself suggests that the Board could have given reasonable time to the school to present its case and could have passed an order after satisfying the principles of natural justice as it had ample time keeping in mind the interest of the students approximately 900 in number who are now left in lurch. The case of the Board at best was that the school was set up based on a forged NOC. The school was functional for the past 9 years without any complaint of maladministration or misadministration so as to justify such immediate reaction on behalf of the Board.

18. Let us now test the validity of the order dated 02.12.2019 withdrawing recognition. The preliminary stand as far as the order withdrawing the recognition as far as the case of the School and the Parents is common. It is their case that the statutory provisions of the Gujarat Primary Education Act, the Rules thereunder and the provisions of the RTE Act and Rules thereunder have been violated. Their case is that the violation of a prescribed procedure under a statute is evident and unlike withdrawal of affiliation which violates the norms of administrative law as set out by various judgements vis-a vis violation of principles of natural justice, violation of mandatory provisions of procedure which the statute mandates is a more flagrant and apparent violation evident on record.

18.1 Reliance in placed on Section 40A and Rule 109 of the Gujarat Primary Education Act and the Gujarat Primary Education Rules. Section 40 A and Rule 109 of the Rules read as under.

Sec.40A The Bombay Primary Education Act,1947 "40A

(1) On and after the commencement of the Bombay Primary Education (Gujarat Amendment) Act, 1986, no person other than the State Government, a. School Board or an authorised municipality shall impart primary education through a school unless such school is recognised under this section.

(2) Every person to whom sub-section(1) applies and who desires to impart primary education by establishing a primary school shall, on an application made to the director of Primary and Adult Education, Gujarat State (hereinafter referred to as the "Director") or any other officer authorised by the State Government in this behalf (hereinafter referred to as the "authorised officer") in such form and, on payment of such fees as may be prescribed and, subject to the provisions of sub-section (4), be entitled to have the school recognised on the fulfilment of such conditions as may be prescribed for such recognition.

(3) Notwithstanding anything contained in sub-section(2) every private primary school which on the commencement of the Bombay Primary education (Gujarat Amendment) Act, 1986, stands recognised as an approved school by a school board or by the State Government or by an officer authorized by it in this behalf shall be deemed to have been recognised under this section from the date of such commencement and shall continue to be so recognised until such recognition is withdrawn under sub-section (7).

(4) On receipt of the application made under sub-section (2), the Director or, as the case may be, the authorised officer shall consider and make an inquiry in respect of such application in such manner as may be prescribed and then decide within a period of three months from the date of receipt of the application as to whether the school may be recognized or the application for recognition be rejected.

(5) The Director or the authorised officer may while recognising a school, impose such of the prescribed conditions on the management of the school as he thinks fit.

(6) Every recognised school shall be given a certificate of recognition in the prescribed form.

(7) Where any person in charge of the management of a recognised school has been after the due inquiry in the prescribed manner by the Director or the authorised officer, found to have committed default in carrying out any of the obligations imposed on such person under this Act or the rules made under this Act or any instructions issued to him by the State Government the Director or, as the case may be, the authorised officer shall after giving such person an opportunity of being heard, direct that the recognition of the school be withdrawn for such period as may be specified in the direction or be withdrawn permanently.

(8) Any person aggrieved by the decision, of the Director or the authorised officer under sub-section(4) or sub-section (7) may within a period of one month from the date on which the decision is communicated to him, appeal to the State Government, and the State Government shall decide the appeal within two months from the date of the presentation of the petition of appeal and the decision in such appeal shall be final.

(9) The State Government may, on sufficient cause being shown, direct at any time that the recognition of the school which has been withdrawn, may be restored on such conditions and on payment of such fees as may be prescribed and on such further conditions, as the State Government may deem fit to impose.

(10) Where the recognition of a school is withdrawn under sub-section (7) the certificate of recognition issued to the person in charge of the management thereof shall be deemed to have been cancelled and such person shall forthwith surrender the certificate of recognition to the Director or the authorised officer. The cancellation of certificate of recognition shall be published by the Director or, as the case may be, the authorised officer in the Official Gazette and in such news papers as the Director or the authorised officer may select."

THE BOMBAY PRIMARY EDUCATION RULES, 1949

"109 Withdrawal of Recognition:-

(1) A private primary school which is once recognised as an approval school shall be continued to be so recognised unless its recognition is withdrawn under Sub-rule(2).

(2) Such recognition may at any time be withdrawn by the Director on the recommendations of the authorised officer on any of the following grounds, namely:-

(a) That any of the conditions on which the private primary school was recognised is not observed:

(b) that any person in charge of management of a recognised private primary school has been found to have committed default in carrying out any of the obligations imposed on such person under the Act, rules or any instructions issued to him by the State Government or any Authorised Officer.

(c) That the standard of the instruction in the school falls materially below the level obtaining in public school;

(d) That the standard or division is started without the previous permission of the Director;

(e) That it does not pay to its teacher the scales of pay and allowances prescribed by the State Government from time to time subject to such instructions as may be issued by the State Government in that behalf;

(f) That the charges of the tution fees are not in accordance with the rates approved by the State Government;

(g) That it does not produce at the time of inspection a Certificate from a Chartered Accountant, that its accounts have been verified and found correct;

(h) That the private primary school is conducted for profit;

(i) That the teachers or pupils in the private primary school take part in or subscribe to or assist any political or communal movement which leads directly or indirectly to excite disaffection against or embarrasses the Government or promotes feelings of hatred or enmity between different classes of people or disturb peace or embarrasses the school board;

(j) That the private primary school either denies admission to any pupil or decline to employ any persons in ground only of religion, race, castism, language or any of them, (3) No recommendation for withdrawal of recognition shall be made except after holding an inquiry in the following manner, namely:-

(a) When an order for inquiry has been made, the Authorised Officer shall from definite charges on the basis of defaults and shall communicate such charges, alongwith the statement of defaults committed and irregularities or breach of conditions if any made by the person in charge, of the private primary school and also, require him to submit within 15 days a written statement of defence and also to state whether he desires to be heard in person.

(b) On receipt of the written statement of defence and in case such statement is not received within the time specified, the Authorised Officer may himself enquire into the charges as are not admitted. During the inquiry the person in charge of the school shall be given an opportunity of furnishing a written statement as well as of leading evidence, if any. In case the person in charge of the private primary school does not present himself before the Authorised Officer after due notice, an exparte inquiry shall be made.

(c) At the conclusion of the inquiry, the Authorised Officer shall prepare a report of the inquiry, record his findings on each of the charges together with reasons therefore and if in his opinion the proceedings of the inquiry establish charges different from those originally framed he may record findings on such charges:

(d) The proceedings, conducted against the person incharge of the private primary school shall contain a sufficient record of

(i) the charges framed against such person in charge of the private primary school and the statement of defaults, irregularities and breaches;

(ii) the written statement of defence, if any;

(iii) the oral evidence taken regarding the course of the inquiry;

(iv) the documentary evidence considered in the course of the inquiry;

(v) the order, if any, made by the Authorised Officer with regard to the inquiry; and

(vi) a report setting out the findings on each charge and the reasons therefore.

(4) The Authorised Officer shall submit his inquiry report along with the records of proceedings mentioned in clause(d) to the Director with his recommendations if any, with a view to proposing the penalty to be imposed upon the school.

(5) The Director shall consider the records of the enquiry and its findings on each charges and the recommendations of the Authorised Officer and shall decide the penalty to be imposed upon the school.

(6) The Director shall after giving an opportunity of being heard to such person in charge of the private primary school, direct that the recognition of such school be withdrawn for such period as may be specified in the direction or be withdrawn permanently.

(7) Any private primary school aggrieved by the decision of the Director may submit an appeal to the State Government under sub- section (8) of section 40A of the Act.

(8) Where the recognition of a private primary school is withdrawn under sub-rule (6) of the certificate of recognition issued to the person in charge of the management thereof shall be deemed to have been cancelled and such person shall forthwith surrender the certificate of recognition to the Authorised Officer. The cancellation of certificate of recognition shall be published by the Director, in the Official Gazette, and in such news papers as the Director may think fit."

18.2 That the order of withdrawal of recognition has been passed in exercise of powers under Rule 109 is not a matter of dispute between the parties because the State has gone on record by producing a communication dated 30.11.2019 (PAGE 771) by which the Director of Primary Education has authorized the DPEO for initiating action under Rule 109 of the Gujarat Primary Education Rules, 1949. Reading Section 40A of the Gujarat Primary Education Act particularly sub- section (7) thereof makes it abundantly clear that where a person in charge of the management of a recognized school, has been after due inquiry in the prescribed manner by the Director or the authorized officer, found to have committed default in carrying out any of the obligations imposed on such person under the Act the State Government or the Director or the authorized officer shall after giving the person an opportunity of being heard direct that the recognition of the school be withdrawn for such period as may be specified in the discretion or be withdrawn permanently.

18.3 The procedure of derecognition is so prescribed under Rule 109 of the Rules. The Rule envisages a two stage hearing. The Director can withdraw the recognition on the recommendations of the authorized officer on circumstances set out in the Rule. Sub-Rule (3) of Rule 109 provides that no recommendation for withdrawal of recognition shall be made except after holding an inquiry in the following manner. The manner prescribed is as under:

i) The authorized officer shall frame definite charges on the basis of defaults and shall communicate such charges along with the statements of defaults committed and irregularities or breach of conditions.

ii) The school or the person is to supply a written statement of defence within 15 days and also state whether he desires to be heard in person.

iii). On receipt of the written statement and in case the written statement is not received within time, the Authorised Officer shall himself inquire into the charges as are not admitted.

iv). During the inquiry the person in charge of the school shall be given an opportunity of hearing as well as leading evidence, if any.

v). The Authorised officer shall on conclusion of the Inquiry prepare a report of the inquiry with reasons and if in his opinion the charges are proved, record findings.

vi). The report so be prepared on the basis of defence of the school. The defence includes a written statement, oral evidence taken during the course of inquiry, documentary evidence and the order.

vii). The report will then set out findings on each charge with reasons.

18.4 This is the first stage of hearing provided to the School at the inquiry. The next stage proceeds as under:

viii).After the inquiry report is prepared the same is furnished to the Director with the recommendations of the Authorized Officer.

ix).The Director then shall consider the records of the enquiry and shall decide the penalty to be imposed on the school.

x).The Director shall after giving a reasonable opportunity of being heard to such person in charge of the private school and direct that the recognition of such school be withdrawn for the period as may be specified or be withdrawn permanently. This is the second stage opportunity of hearing so provided to the school.

19. The State in the present facts has from the chronology of dates as under justified the compliance of Rule 109. The relevant summary of dates and the State's defence is as under:

16.11.2019 The electronic media flashed news of one Ashram being Yogini Sarvagyanpeetham which was functioning under a godman name Swami Nityanand from the premises of the petitioner school wherein two girls went missing.

The DEO Ahmedabad Rural telephonically called one Mr. Hitesh Puri, Principal of the petitioner school an inquired whether the said Yogini Sarvagyanpeetham was functioning from the premises of the petitioner school to which Mr. Puri informed that the said Ashram is situated outside the campus of the petitioner school.

Rule 106 (4) (XII) of the Bombay Primary Education Rules, 1949 empowers the State Government to inspect school premises and therefore, the DEO Ahmedabad Rural conducted an inspection of the said school premises wherein it was found that the Yogini Sarvagyanpeetham Ashram was functioning from the same school premises.

16.11.2019 at DEO, Ahmedabad Rural on his visit to the around 12:00 petitioner school sought documents pertaining p.m. to land of the petitioner school and the Map of the petitioner school along with other documents in order to ascertain the location of the petitioner school. However, the same were not supplied.

Mr. Puri on insistence by DEO Ahmedabad Rural provided the following document:

(f) One leave and license agreement dated 15.07.2019 wherein the property described as "DPS East extension Block" was leased out to one Nityanandeshwara Devsthanam Trust by Calorx Education and Research Foundation as the same property at that time was not in use by the licensor Calorx Education and Research Foundation so that the licensee Nityanandeshwara Devsthanam Trust could run an institution imparting Gurukul Pattern of Education in the said premises.

(g) A list comprising of 24 students who were disciples of the said Ashram but were enrolled on the General Register of the petitioner school.

Note:-

Out of the list comprising of 24 students:

* Transfer certificates of 18 students didn't exist.

* Birth Certificates of 8 students were not available.

* 4 students were foreign nationals admitted without necessary documents.

These 24 students were admitted either without transfer certificates or and birth certificates or and without confirmation of admission from their respective parents.

17.11.2019 An FIR being I/CR No. 38/2019 u/s 365,323,114, 344, 504, 506(2) was registered at Vivekanandnagar Police Station by one Janardhan Sharma against.

1. Swami Nithyananada

2. Maa Pranpriya

3. Maa Priyatatva All residing at: Nityananda Ashram Hirapur, Gujarat.

Ingredients of FIR:

The accused persons-Swami Nithyananda is the founder of "Yogini Saryagava Nityanand Ashram' situated at Ahmedabad, Ma Pranpriya and Ma Priyatattva are managers of the said Ashram. It is the case of the complainant that his children i.e. 2 daughters (aged 18 and 15 years) and 1 son (aged 12 years) were being imparted vedic education at the Nithyananda Ashram, Bangalore. The accused without the knowledge of the complainant transferred the children to Hirapur Gurukul, Ahmedabad from Bangalore without knowledge and consent of the complainant. The complainant tried meeting his children but was not allowed to meet. When the complainant insisted to meet the children the accused kidnapped and shifted the children to a house in nearby vicinity.

SIT was constituted for investigation (Accused No. 2 & 3 are arrested and Accused No.1 is absconding) Criminal Case No. 525/2020 is committed in the Court of Hon'ble JMFC, Mirzapur, Ahmedabad.

Note:

The FIR describes the premises of Ashram to be that of the petitioner school. One of the child of the complainant named Kalplata Janardhana Enrolled with GR No. 1751(in the group of 24) was given admission in the petitioner school without the consent of her parents hence, no transfer certificate or admission form duly signed by the parents were given to the authorities.

Hence, it is the case of the State Authorities that 24 students are enrolled in General Register of the school. No documents establishing their process of admission were provided. It is a matter for grave concern as these children could be cases of kidnapping, child trafficking etc. 18.11.2019 A team comprising of Shrimati Sneha Gohil (Education Inspector), Kalpesh Raval (Education Inspector), Mukesh Valani (I/C Education Inspector), Bharat Pate (Asst. Education Inspector ) , Nirmalaben Parmar (Asst.Education Inspector) was constituted by DEO Ahmedabad Rural on 16.11.2019 and was sent for further inspection to the petitioner school.

The team stayed all day long at the said premises but the petitioner school authorities did not provide any documents. The school authority did not co-operate in any manner with the officers of Education Department. Rojkam of the same has been undertaken.

18.11.2019 DPS sent an email to DEO, Ahmedabad Rural with incomplete details of the documents as sought for time and again by DEO, Ahmedabad Rural.

Note:-

In this e-mail Hitesh Puri, Principal of the school admits that the Gurukul building is a part of the school and also admitted that the school has nothing to do with the day to day activity of the said Ashram and that the school is providing free education to the students of the Gurukul. 19.11.2019 The team of DEO Ahmedabad Rural once again inspected and carried out inquiry at the petitioner school premises, but in vain. The school authorities did not cooperate.

The team prepared a ROJKAM report. The rojkam report includes an identification parade which was carried out by the team of DEO Ahmedabad Rural wherein on the basis of the photographs of students on the admission forms, teachers were asked to identify students from amongst the 24 ashram students who were enrolled on the general register of the petitioner school but in reality were the disciples of the said ashram.

19.11.2019 A show cause notice was issued by the Inspecting Team, DEO Ahmedabad Rural to the petitioner school to provide for the documents as follows:

* Transfer Certificate and mark sheets of 24 Students who were enrolled on the school GR.

* Affiliation certificate

* NOC and annexed documents

* Approved Plan and BU permission obtained by the school.

* Documents provided to CBSE by the school when it applied for affiliation

* Fire safety certificate

* Certificate of the Sanitary Inspector.

* Certificate of Food Inspector (Canteen)

* Documents submitted by school to FRC

* FRC orders till date

* Fee Receipts of one student from every standard.

* CCTV footages from 1.11.2019 to 19.11.2019 of the class of 24 students.

* CCTV footages dated 19.11.2019 from 9.30 am to 12.30 pm of the class of 24 students wherein rojkam report proceedings of teachers identifying concerned students was drawn.

* Documents pertaining to permission of running the said Ashram in school premises.

The notice stipulated that if in 7 days the requisite documents would not be produced by the petitioner school it would draw a presumption that the school does not want to produce any documents and consequential orders would be passed against school authorities in accordance with law.

A communication was sent to the Principal of the petitioner school by the team of DEO Ahmedabad Rural wherein it was stated that though called the Principal did not remain present on 18.11.2019 and that if school wanted to submit documents the same were to be submitted within 7 days.Following documents were called for:

* Transfer Certificate and mark sheets of 24 Students who were enrolled on the school GR.

* Affiliation certificate

* NOC and annexed documents

* Approved Plan and BU permission obtained by the school.

* Documents provided to CBSE by the school when it applied for affiliation

* Fire safety certificate

* Certificate of the Sanitary Inspector.

* Certificate of Food Inspector (Canteen)

* Documents submitted by school to FRC

* FRC orders till date

* Fee Receipts of one student from every standard.

* CCTV footages from 1.11.2019 to 19.11.2019 of the class of 24 students.

* CCTV footages dated 19.11.2019 from 9.30 am to 12.30 pm of the class of 24 students wherein rojkam report proceedings of teachers identifying concerned students was drawn.

* Documents pertaining to permission of running the said Ashram in school premises.

21.11.2019 The Secretary, CBSE requested Director of Schools, Gandhinagar to inquire about the petitioner school which was affiliated by CBSE with reference to:

1. NOC No. MSB/1210-1965-CHH dated 27/07/2010.

2. The Land Records of the petitioner school.

3. The lease records between DPS East school and trust i.e. Ashram.

21.11.2019 Director of Schools, Gandhinagar authorized District Education Officer, Ahmedabad Rural (through Joint Director) to inquire into the same. 21.11.2019 District Education Officer requested the Principal/Trustees of the petitioner school vide email dated 21.11.2019 to remain present with all the responsible staff along with trustees/ representatives of trust of school to conduct an inquiry into as sought for by CBSE.

21.11.2019 Additionally the school authorities /Principal /Trustees were also informed via Email, phone calls, what'sapp messages, text messages, but nobody remained present at school.

21.11.2019 The principal of DPS East school was to remain present before the police authorities at Vivekanand Nagar police station, with regards to FIR being CR No. II/173/2019 which was registered against Hitesh Puri, Principal, DPS for violating the notification of the District magistrate wherein intimation to the police is to be provided in order to give immovable property on lease.

The DEO authorities reached the police station and requested the principal to participate and cooperate in the inquiry. However, the principal of the petitioner school chose not to remain present at school and left straight from police station. Therefore, Rojkam was undertaken stating that procedure could not be completed as Principal did not remain present at the school.

21.11.2019 FIR being CR No.II/173/2019 was registered against Hitesh Puri, Principal DPS at Vivekanandnagar Police Station, Ahmedabad for offences punishable u/s 188 of IPC and 133 of the GP Act for leasing out school premises to ashram without intimating police, thereby violating the Notification of the District Magistrate.

21.11.2019 Second notice was pasted on principal's office which stated that the school should send the documents till 22/11/19 before 9:00 am, as called for by the DEO or else necessary consequential orders would be passed.

Necessary Rojkam of the second notice was undertaken.

22.11.2019 The Directorate of Schools/Commissioner of Schools forwarded the report of the DEO to CBSE and it was brought to the notice of CBSE that no document granting "No Objection Certificate" was issued to the petitioner school by the State Authorities.

22.11.2019 Respondent school sent an email to DEO Ahmedabad Rural referring to the spot inquiry dated 16/11/2019, 18/11/2019 and 19/11/2019 wherein it stated that it has terminated the leave and license agreement and provided an incomplete list of documents.

Note:

The DEO Ahmedabad Rural had asked to furnish following documents on 19/11/2019:

* Transfer Certificate and mark sheets of 24 Students who were enrolled on the school GR.

* Affiliation certificate

* NOC and annexed documents

* Approved Plan and BU permission obtained by the school.

* Documents provided to CBSE by the school when it applied for affiliation

* Fire safety certificate

* Certificate of the Sanitary Inspector.

* Certificate of Food Inspector (Canteen)

* Documents submitted by school to FRC

* FRC orders till date

* Fee Receipts of one student from every standard.

* CCTV footages from 1.11.2019 to 19.11.2019 of the class of 24 students.

* CCTV footages dated 19.11.2019 from 9.30 am to 12.30 pm of the class of 24 students wherein rojkam report proceedings of teachers identifying concerned students was drawn.

* Documents pertaining to permission of running the said Ashram in school premises.

Therefore, the school even vide this communication dated 22.11.2019 did not provide following documents:

* Transfer Certificate and mark sheets of 24 Students who were enrolled on the school GR.

* NOC and annexed documents.

* Approved Plan and BU permission obtained by the school.

* Fire safety certificate

* Certificate of Food Inspector (Canteen)

* Documents pertaining to permission of running the said Ashram in school premises.(Denial is made that the said Ashram does not run from the school premises) 23.11.2019 DEO requested Police to conduct an inquiry on the 4 foreign national students found at the school premises.

23.11.2019 The school was given show cause notice by CBSE referring the report dated 22/11/2019 of Directorate of schools, Gandhinagar. 24.11.2019 The principal of DPS East school sought appointment to meet DEO via Email 25.11.2019 Dy. District Primary Education Officer constituted a committee chaired by Dy. DPEO for DPS East School Inspection. The committee instructed the petitioner school for providing necessary and relevant documents as follows:

1. Copy of Registration of Trust

2. FRC orders till date

3. Fees receipts of students

4. Total no. of students till date

5. No. of classrooms

6. Recruitment details of teachers

7. Details of salaries paid to teachers

8. Copy of Land NOC, NA details

9. Copy of BU permission

10. Copy of Rent Agreement

11. Copy of Building Plan

12. Copy of Fire Safety Certificate

13. Details of ownership of land, copy of NA, NOC and copy of CBSE application details

14. Copy of NOC

15. Copy of CBSE certificate

16. Copy of Agreement with Ashram

17. Food Safety Certificate

18. Details of students participating in sports and other activities.

19. Details of students using transportation facility.

20. Details of GR

21. Copy of admission files, LC files

22. RTE admission details

23. Details of curriculam

24. Details of students residing at Ashram

25. Police verification details of the staff.

25.11.2019 The DEO met the principal as well as trust representative Mr. Julies at the office of DEO and a personal hearing was given. Rojkam of the same was undertaken. Documents which were still not provided are as follows:

An incomplete list of documents was provided by school to DEO which did not include:

(i) Transfer Certificate and mark sheets of 24 Students who were enrolled on the school General Register.

(ii) "No Objection Certificate" and annexed documents

(iii) Approved Plan and Building Usage permission obtained by the school.

(iv) Fire safety certificate

(v) Certificate of Food Inspector (Canteen)

(vi) Documents pertaining to permission of running the said Ashram in school premises.(Denial is made that the said Ashram does not run from the school premises) A Rojkam was prepared which recorded that a hearing was given to Julies Christian , Director Calorx Foundation and Hitesh Puri, Principal DPS East Ahmedabad who also produced some documents(PAGE 745) .

However when Julies Christian, Director Calorx Foundation and Hitesh Puri, Principal DPS East Ahmedabad were asked to give a statement they declined. Rojkam is prepared of even date which records the refusal of the two school authorities to give a STATEMENT (PAGE 747).

26/11/2019 Directorate of School requested DEO to meet the concerned school officials hence, DEO vide email dated 26.11.19 and through an urgent communication on the same day gave one more opportunity of hearing to the petitioner on 27/11/2019 at 15.00 hours.

27/11/2019 After hearing Mr. Hitesh Puri, Principal DPS and Mr. Julies Christian, Director of Calorx Education and Research Foundation, Rojkam was recorded by DEO during the hearing wherein only a few documents were produced by the Principal/trustees of the petitioner school. Documents which were not produced are as follows:

* Transfer Certificate and mark sheets of 24 Students who were enrolled on the school GR.

* NOC and annexed documents.

* Approved Plan and BU permission obtained by the school.

* Fire safety certificate

* Certificate of Food Inspector (Canteen)

* Documents pertaining to permission of running the said Ashram in school premises.(Denial is made that the said Ashram does not run from the school premises) 27.11.2019 Rojkam was recorded wherein school authorities namely Mr Hitesh Puri, Principal and Mr Julies Christian, Director both state that this was all that could be furnished by the school authorities and there are no other documents left to be given to DEO by the school authorities. 28.11.2019 Dy. DPEO visited school and asked the petitioner school to furnish the necessary details with relevant documents.

29.11.2019 The petitioner school sought time till 2nd December, 2019 vide an email to furnish further documents to the DPEO.

29.11.2019 District Education Officer, Ahmedabad Rural filed FIR being CR No I/39/2019 at Vivekanand Nagar Police Station, Ahmedabad u/s 465, 467,468, 471, 120B and 114 of the Indian Penal Code against three person being:

(f) Anita Dua

(g) Hiten Vasant

(h) Manjhula S.

29.11.2019 The petitioner school replied to the show cause notice of CBSE dated 23.11.2019.

Note:-

In this reply the school stated that;

i. It admitted that No NOC was submitted to CBSE by the petitioner school.

ii. That the Ashram was not located within the school and is not a part of the school premises.

iii. The premises were given as permissive user to NHU Trust for running institution to impart knowledge in Gurukul Pattern of Education.

iv. CBSE affiliation is granted to the school on certificate of land for five plots of land admeasuring combined total 25, 374 Sq. meter which does not include the said plot of land bearing Survey No. 1319 (Old Survey No. 44) 30.11.2019 Dy. DPEO sent an email to Principal, DPS and called for requisite documents once again from the petitioner school stating that only a few documents have been received and that other documents need to be supplied by the school till 29/11/2019.

The documents that were called for on 25.11.2019 were:

1. Copy of Registration of Trust

2. FRC orders till date

3. Fees receipts of students

4. Total no. of students till date

5. No. of classrooms

6. Recruitment details of teachers

7. Details of salaries paid to teachers

8. Copy of Land NOC, NA details

9. Copy of BU permission

10. Copy of Rent Agreement

11. Copy of Building Plan

12. Copy of Fire Safety Certificate

13. Details of ownership of land, copy of NA, NOC and copy of CBSE application details

14. Copy of NOC

15. Copy of CBSE certificate

16. Copy of Agreement with Ashram

17. Food Safety Certificate

18. Details of students participating in sports and other activities.

19. Details of students using transportation facility.

20. Details of GR

21. Copy of admission files, LC files

22. RTE admission details

23. Details of curriculam

24. Details of students residing at Ashram

25. Police verification details of the staff.

The documents which were not supplied as on 28/11/2019 were:

1. Copy of Registration of Trust

2. Recruitment details of teachers

3. Details of salaries paid to teachers

4. Copy of Land NOC, NA details

5. Copy of BU permission

6. Copy of Rent Agreement

7. Copy of Building Plan

8. Details of ownership of land, copy of NA, NOC and copy of CBSE application details

9. Copy of NOC

10. Details of students using transportation facility.

11. Police verification details of the staff.

Director of Primary Education authorized DPEO for initiating actions under Rule 109 of the Bombay Primary Education Rules, 1949. 30.11.2019 01.12.2019 CBSE cancelled the affiliation of the petitioner school on the grounds that "No Objection Certificate" was not submitted which was a pre- requisite condition for obtaining affiliation. 02.12.2019 As the petitioner school authorities through email on 29/11/2019 sought time till 02/12/2019 for furnishing relevant documents, the Dy. DPEO on not receiving the documents emailed one another notice calling upon the petitioner school to send relevant documents stipulating the time till 2:00 pm failing which it would be understood that the petitioner school did not want to further submit anything and necessary actions would be undertaken in accordance with law.

02.12.2019 No documents were received by the Dy. DPEO as per last notice dated 02.12.2019.

02.12.2019 DPEO Cancelled the recognition of the petitioner school on the grounds that the school was functioning against the policy of the State Government and important details and documents such as document of BU was not furnished by the school.

19.1 The State has produced this chronology of events with an Affidavit of the DEO. Perusal of the Order dated 2/12/2019 indicates that the order is based on a premise that the School did not co-operate in supplying the documents asked for and therefore the State came to a conclusion that the school is being managed in contravention of the rules and regulations and therefore the recognition is withdrawn. The perception of the State that the School is not co-operating and therefore the recognition be withdrawn is obviously a fait accompli presented to the School without even following the procedure prescribed under the Rule.

19.2 In the alternative, unfolding of events would indicate that even if is it is the stand of the State that the Principal had specifically stated after a show cause notice of 19.11.2019, on 25.11.2019 that there was nothing more to be said, did not absolve the State from following the procedure so prescribed under Rule 109, when it was an order passed in exercise of such powers. In context of the chronology of dates together with the documents produced by the State would in fact indicate that on 16.11.2019, the DEO visited the premises and sought for documents pertaining to land, leave and licence agreement with the Ashram etc and list of 24 students. The same was provided by the School.

19.3 In response to the queries raised by the DEO, the School sent an email clarifying certain aspects of the usage of school land by the Gurukul. A rojkam prepared on 18.11.2019 does not indicate non-cooperation. On 19.11.2019, the DEO asked for several documents 13 in number ranging from Transfer Certificates of the 24 students, affiliation certificate, NOC and annexed documents etc. It asked the school to furnish the documents on the very day. A subsequent notice of 19.11.2019 gave the School 7 days i.e. time upto 26.11.2019. The letter dated 19.11.2019 is certainly not a show cause notice. The document i.e a communication dated 19/11/2019 when translated reads as under:

"That this is to inform you that in context of the reports on 16/11/2019 regarding the Asram,the DEO and the Inspector had visited the premises on 16//11/2019.The School asked for time and therefore the team visited the School on 18/11/2019.On time asked for it was granted till 19/11/2019 however today also no documents are furnished.Further time is therefore granted for 7 days to furnish documents."

19.4 The document as reproduced in a translated version nowhere makes any specific charge or an allegation much less suggests withdrawal of recognition. The DEO pasted a notice on the premises of the School on 21.11.2019 as according the State's perception when the DEO tried to meet the Principal even at the Police Station the Principal did not co-operate. The School from the correspondence produced, evidently tried to meet the officers. In fact a detailed reply was submitted also on 21.11.2019. On 22.11.2019 the school was asked to submit documents by 25.11.2019. The school wrote an e-mail on 24.11.2019 extensively submitting how they had visited the Gandhinagar Office and were made to wait till late evening and come thereafter on Monday. Without waiting for the 7 day period, a report on 22.11.2019 was sent out that the School was not submitting documents. Mr Joshi, learned Senior Advocate has pointed out discrepancies in the Rojkam which is not being entered into at this stage.

19.5 Once again on 25.11.2019, the DPEO inspected the School and asked the School to submit a list of 25 documents by 1 pm. Statements of the Principal was recorded on 27.11.2019. On 28.11.2019, the DPEO called upon the school to produce documents stating that if the same are not produced on or before 29.11.2019, it will be presumed that the School had nothing to say. An e-mail of 9.48 am on 2.12.2019 asked the School to furnish records by 2 pm otherwise it will be presumed that the school had nothing to say and the papers would be sent to the higher authorities for inquiry presuming that the school had nothing to say. The order of de-recognition was passed on the same day.

20. Evidently therefore no procedure as set out under Rule 109 of the Gujarat Primary Education Rules as set out hereinabove has been followed. No inquiry as contemplated under the Rules by drawing charges and then a hearing on the basis of such inquiry based on framing of charges and written defence and evidence oral and or documentary and then hearing by the Director on whether the withdrawal has to be for a specified period or permanent are undertaken by the Director based on such report. The Order is therefore evidently bad for not following the statutory mandate under Rule 109 of the Gujarat Primary Education Rules.

21. The second limb of attack by the School and the Parents was that the order withdrawing the recognition was in violation of Section 18 read with Rule 16 of the RTE Act and the Rules thereunder. Section 18 of the RTE Act reads as under:

The Right of Children to Free & Compulsory Education Act, 2009:-

"18. No School to be established without obtaining certificate of registration.- (1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. (2) The authority prescribed under sub- section(1) shall issue the certificate of recognition in such form within such period, in such manner, and subject to such conditions, as may be prescribed:

Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19. (3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition:

Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed.

(4) With effect from the date of withdrawal of the recognition under sub-section(3), no such school shall continue to function.

(5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such c

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ontravention continues." 21.1 Rule 16 of the RTE Rules reads as under: The Right of Children to Free & Compulsory Education Rules, 2010 "16. Withdrawal of recognition to school.-(1) Where the District Education Officer (hereinafter in this rule referred to as the said Officer) on his own motion, or on any representation received from any person, has reason to believe, to be recorded in writing, that a school recognised under rule 15, has violated one or more of the conditions for grant of recognition or has failed to fulfill the norms and standards specified in the Schedule, the District Primary Education Officer shall act in the following manner:- (a) issue a notice to the school specifying the violations of the condition of grant of recognition and seek its explanation within one month; (b) in case the explanation is not found to be satisfactory or no explanation is received within the stipulated time period, the said Officer may cause an inspection of the school, to be conducted by a Committee of three to five members comprising of educationalists, civil society representatives, media, and government representatives, which shall make due inquiry and submit its report, along with its recommendations for continuation of recognition or its withdrawal, to the said Officer; (c) on receipt of the report and recommendations of the Committee, the said Officer may pass order for withdrawal of recognition: Provided that no order for withdrawal of recognition shall be passed by the said Officer without giving the school adequate opportunity of being heard: Provided further that no such order shall be passed by the said Officer without prior approval of the appropriate Government. (2) The order of withdrawal of recognition passed by the said Officer shall be operative from the immediately succeeding academic year and shall specify the neighbourhood schools to which the children of that school shall be admitted." 22. The State has contested the claim of the School and the parents by relying on Section 3 read with Section 2(d) and 2 (e) of the Act to submit that the Act does not apply to the self-financed school. The petition of the children is also opposed on the ground that such children cannot claim the benefit of the provisions of the Act as they are not children belonging to disadvantaged group or weaker sections. RTE Act will therefore not apply to these children. 22.1 Reading Section 3 makes it clear that the State's objection is misconceived because the Section is inclusive inasmuch as it says that every child of the age of six to fourteen years including a child referred to in clause (d) or clause (e) of Section 2 shall have a right to free education. Therefore it does not restrict the scope of the Act. Moreover as per Section 2(n) (iv) it also applies to an unaided school not receiving grant. So the School is under the purview of the RTE Act and perusal of the impugned orders would indicate that in passing order of withdrawal no such procedure as envisaged under the RTE Act has been followed. 23. The Counsels on behalf of the Parents and the Children extensively relied on the aspect of the children being important stake holders in education. Article 21A of the Constitution Of India was also pressed into service to contend that the right to education is now a fundamental right. The RTE Act therefore makes it clear that Article 21A contemplates right to education flowing from the law to be made i.e. RTE Act, 2009 which is child-centric and not institution centric. Reliance was placed on the decision of the Supreme Court in the case of Society For Unaided Private Schools of Rajasthan (supra). Paras 28 to 30 read as under: "28. To provide for right to access education, Article 21A was enacted to give effect to Article 45 of the Constitution. Under Article 21A, right is given to the State to provide by law "free and compulsory education". Article 21A contemplates making of a law by the State. Thus, Article 21A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education. 29. One more aspect needs to be highlighted. It is not in dispute that education is a recognised head of "charity" [see T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481]. Therefore, even according to T.M.A. Pai Foundation, if an educational institution goes beyond "charity" into commercialization, it would not be entitled to protection of Article 19(1)(g). This is where the paradox comes in. If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution? 30. Coming to the principle of reasonableness, it may be stated, that though subject-wise, Article 21A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access education within Article 21A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. [See Khudiram Das v. State of West Bengal reported in (1975) 2 SCR 832] After the judgment of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the principle of reasonableness is applicable to Article 14 of the Constitution. As held by this Court in Glanrock Estate Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96], Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help us to correlate Article 21 with Article 14, Article 19 and, so on." 23.1 Emphasis was also laid on the fact that the order withdrawing recognition was bad as it was open for the authorities to consider withdrawal for a specified period and not necessarily permanent withdrawal. Even Rule 16 contemplated that the order of withdrawal should be operative from the immediately succeeding academic year and shall specify the neighborhood schools to which the children of the school can be admitted. Perusal of the Order of 02.12.2019 indicates that the order of withdrawal is with immediate effect i.e. from the same academic session and also does not specify the neighborhood schools the children shall be admitted. Therefore, apart from it being violative on not having been passed after affording an opportunity of hearing as contemplated under the RTE Act, the order also fails the test on the other grounds as specified hereinabove. 24. The State has through its affidavit contended that the petitions of the parents and the children is a collusive petition with that of the School. Proceedings of CMA for withdrawal filed in the Petition filed by the School before the Delhi High Court and the sequence of dates of circulation of the petitions of the parents and children are pressed to perceive collusion. The children and naturally the parents have an important and a fundamental right and are stake holders and the prayer of the State that the petitions be dismissed as they are collusive is not entertained. 25. So far as the challenge to the order dated 05.12.2019 passed by the State taking over the management is concerned, admittedly, there is no power of the State to take over the management of the School. However, the same was done on the request of the parents as the deaffiliation and derecognition was in the midst of the academic session. Keeping the interest of the children in view, the State agreed to take over the control of the school upto 31.03.2020. The school as well as the parents contend that the State could not have taken over the control of the school as there is no provision under the Act for the State to do so. However, the government placed reliance on Section 33 of the Gujarat Secondary Education Act and drawing a parallel therefrom submitted that the school was taken over in the interest of the children. It is apparent that on the request of the parents to see that they are not left in lurch the State took over the management albeit briefly till 31/3/2010. 26. At the cost of repetition therefore, what emerges from the discussion hereinabove is that the orders of the CBSE and the DPEO deaffiliating and derecognising the school respectively have been passed in violation of principles of natural justice and the statutory mandate as envisaged under the relevant acts. This is particularly in view of the fact that when the decision was taken the school was in its academic session which was to end in March 2020 i.e. after three months from the date of the impugned orders. There was no reason for the CBSE and the State to act in haste when there were no emergent circumstances to act forthwith. The action was triggered only on the basis of media reports of 16.11.2019 which did not have a direct connection with the administration of the school and carrying out its educational activities which it was otherwise so doing without complaint for a period of 9 years. Even if the CBSE and the State wanted to take action on being prompted by the fact that the media reports had suggested that the school had leased out its land to an Ashram, it was incumbent for the CBSE and the State to take action in accordance with the procedure prescribed under the bye-laws and the relevant statutes providing for deaffiliation and derecognition. This Court does not intend to suggest that there is no power with the CBSE or the State to act on the basis of such reports. However, what should have been done is that the Board and the State should have ensured that a proper inquiry is undertaken in compliance with the principles of natural justice and mandate of the statutes keeping in mind the proportionality and gravity of the circumstances. Merely because the State promptly lodged FIRs against the godman and the school for producing fraudulent documents and an FIR for leasing out land against the notification of the State did not absolve the State and the Board from observing the procedural laws that even otherwise mandated them to take a decision in the prescribed manner since the decisions were to affect the future of the children who are stakeholders in the education and as held by the Apex Court the system of education is child centric and not institution centric. On this ground alone, these orders are therefore required to be quashed and set aside with a liberty that the CBSE and the State may take a fresh decision on the affiliation and recognition in accordance with law. 27. Having held that the orders dated 30.11.2019/01.12.2019 passed by the CBSE and Order of the DPEO dated 2.12.2019 being bad in law as being violative of Article 14 of the Constitution Of India in not following the principles of natural justice and also in violation of the statutory provisions of the Gujarat Primary Education Act and the Rules there under as well as the RTE Act, 2009 and Rules there under the orders of de-affiliation and derecognition are quashed and set aside. 28. The orders therefore are only quashed on the ground of breach of principles of natural justice, leaving it open for the CBSE and the State to take suitable action in accordance with law after supplying the materials which have been relied upon in the passing of the impugned orders. The Board and the State are at liberty to pass fresh orders, in accordance with law after supplying the copies of the materials relied upon while taking any decision and specific references of which have been made by the Board in the affidavit in reply. The exercise of taking a fresh decision in accordance with law shall be done by the CBSE and the State within a period of sixteen weeks from the date of receipt of the certified copy of this order. 29. During the course of hearing of the Petition Mr. R.S. Sanjanwala, learned Senior Advocate tendered to the Court a letter dated 19.12.2019 of the Delhi Public School Society addressed to the Secretary Of the State wherein the Society has proposed that the DPS Ahmedabad East be allowed to continue and be managed by a Managing Committee set up by the DPS Society. It shall have a reconstituted Managing Committee with the joint efforts of the Government Of Gujarat. The Parents have also in their written submission expressed a willingness that the School be allowed to be run by the same management under an Administrator of the State Government under its control till a full-fledged enquiry is conducted in arriving at the truth of the purported NOC dated 27.7.2010 30. When this Court is quashing the orders of the CBSE of de-affiliating the School and that of derecognition of the State dated 30/11/2019; 1/12/2019 and 2/12/2019 only on the limited ground of they having been passed without following the procedural laws and leaving it open for both the authorities to pass fresh orders in accordance with law after giving an opportunity of hearing and due inquiry, in the interregnum the School may be managed as proposed by the Delhi Public School Society, Delhi with a reconstituted management excluding the respondents 7 to 9 of Special Civil Application No. 3748 of 2020. The State may also appoint a Senior Officer from its rank to be the Administrator under whose supervision and control the School shall run till a fresh decision on affiliation and recognition is taken by the CBSE and the State after following the rules of natural justice and the statutory mandate under the Gujarat Primary Education Act and the Rules and the RTE Act and the Rules thereunder. Such fresh decision on continuance of affiliation and recognition shall be taken within sixteen weeks from the date of receipt of the certified copy of the Order of this Court. Petitions are allowed to the aforesaid extent. Rule is made absolute accordingly. After the aforesaid judgment and order was pronounced, Mr. Kanva Antani, learned Assistant Government Pleader has sought stay of the order to which Mr. Bijal Chhatrapati and Mr. Parth Bhatt, learned advocates for the petitioners have objected. Request is rejected.
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