Dear Mr Gupta
Thanks for posting below decision related to my case on the group.
It is a landmark decision by Shri Annapurna Dixit and i am really glad that case was transferred from Shri SG whose office sit on this matter for almost 11 months. I still wonder that with same arguments as given to Mr SG why he was not deciding the case whereas when case was transferred to another bench matter got settled within 1 month based on my written arguments submitted.
Anyways, hopefully this decision will definitely challenge educationist lobby and will help suffering parents.
Regards
Mohit Goel
From: M.K. Gupta <mkgupta100@yahoo.co.in>
To: humjanenge@googlegroups.com
Sent: Thursday, 1 September 2011 9:39 PM
Subject: [HumJanenge] DELHI PUBLIC SCHOOL ROHINI IS A PUBLIC AUTHORITY, CIC DECIDES
| In the Central Information Commission at New Delhi File No: CIC/SG/C/2010/001036AD Date of hearing : Aug 5, 2011 Date of Decision : Aug 23 , 2011 Parties: Complainant Sh. Mohit Goel H. No. F14/ 32, Model Town 2nd, Delhi – 110 009 Represented by: Complainant in person with Mr. Satyam and Mr. M K Gupta Respondents The Delhi Public School, Sector – 24, Phase – 3, Rohini, New Delhi – 110 085 Represented by: Mr. S Srinivasan, and Ms. Jyoti Handa, OS Information Commissioner : Mrs. Annapurna Dixit _________________________________________________________________ In the Central Information Commission at New Delhi File No: CIC/SG/C/2010/001036AD ORDER Background 1. The Complainant sought certain information related to admission procedures/ admissions made under the policy framework specified by the Department of Education for the academic year 20102011 for pre school (nursery) from the Respondent vide his RTI Application dated 02.06.2010. Apart from the aforementioned queries asked in the form of eleven questions, the Complainant sought inspection of the admission forms of students (under General category, management quota and EWS ) currently admitted in nursery class of the Respondent's school. 2. The Vice Principal of the school responded on behalf of the Principal vide communication dated 10.06.2010 denying any information on the premise that the RTI Act is not applicable to the school since it is an Unaided Private Institution, while relying on an order dated 25.04.2008 passed by Information Commissioner Mr. O P Kejriwal. The Respondent also sought exemption under Section 8 (1) (j) of the RTI Act 2005. 3. Being thus denied information, the Complainant filed the instant case dated 08.07.2010 before the Commission. The Complainant based his arguments for filing the instant case on three basic grounds, viz: a) Government support to the school made it eligible as public authority under Section 2 (h) of the RTI Act 2005, b) Government nominees are part of the School's Management Committee and Government regulations regulate the general administration of the school c) Larger Public Interest involved in the disclosure of information about admissions in nursery classes of the school renders exemption under Section 8(1) (j) of the RTI Act 2005 inapplicable. 4. A hearing was fixed on 30.09.2010 by the Bench of Mr. Shaiesh Gandhi, Information Commissioner and the Complainant was directed to submit the actual cost of the land. However on a request dated 25.03.2011 from the Complainant, the matter was transferred before the present Bench. The matter was once again heard on 05.08.2011 and both the parties were granted time to file their written submissions, if any, indicating details of the management, administrative control and financing of the School, with reference to Section 2(h) of the RTI Act. Hearing 5. As directed by the Commission, the Complainant submitted a paperbook detailing the reasons for his contention that DPS, Rohini should be declared a Public Authority along with supporting documents. The reasons given by the Appellant are listed below: a) 10,000 sq. mtrs. of land has been allotted to the School by the DDA at a nominal rent of Rs. 10/while another 6000 sq. mtrs. of land have been allotted at concessional rate of Rs. 65 lacs per acre. b) The allotment letter clearly indicates that the School is under indirect Government control in as much as the regulating, governing and controlling of the school is as per the provisions of DSEAR 1973. c) The fact that there are two nominees from the Delhi Administration (Directorate of Education) on the governing body of DPS Society depicts Government control in the management of the School. d) Since two government appointed nominees hold important positions of control in the management Committee, the Directorate of Education is also custodian of all information related to the School. e) The Delhi School Education Act and Rule 1973, which the School abides by enunciates the various points of control of the Government over the management of the School irrespective of the School being aided or non aided by the Government directly. f) Chapter 2 Section 4 (6) of the DSEAR lays down that "…every existing school shall be deemed to have been recognized under this section and shall be subject to the provisions of this Act and the rules made thereunder…". Furthermore, the Chapter 7, Rule 20 of the Act provides for taking over of the management of schools, whenever the Administrator is satisfied that the managing Committee of any school, whether recognised or not, has neglected to perform any duties imposed on it by or under this Act or any rule made thereunder……. g) Fees paid by the students/parents enjoy income tax concession. h) DOE too has given some grant to the School during 2008 and 2009 financial year. 6. The Complainant also furnished a copy of the CAG report no. 4 of 2005 (Civil) while pointing out that Section 4.1 under the heading 'Delhi Development Authority' indicates that the Land Allotment Advisory Committee of Directorate of Education recommends selected Societies to the DDA for grant of land, as in the case of the Respondent School, subject to certain mandatory terms and conditions. The response of the Directorate of Education to an RTI application in this regard has also been placed on record clarifying that the School has been set up under concessions granted by the Government. The Complainant has also cited various instances wherein malpractices and corrupt practices including ambiguous/non transparent admission procedures adopted by the School has acted to the detriment of the students and parents thereby impacting the public at large, despite attempts by the Directorate of Education to curb such practices. It is the case of the Complainant that in view of such high handedness and arbitrary and irregular practices of the School, which prove to be detrimental and contradictory to the purpose of its creation, more so when the School has been established and is run, managed and controlled by Governmental support, it is imperative that the Respondent school be declared a Public Authority so that vital information related to the School which is anyway under the managerial control of the Delhi Administration, is available to the public at large. The Complainant has also cited decision passed by Delhi High Court in the case of INDIAN OLYMPIC ASSOCIATION, SANSKRITI SCHOOL versus VEERESH MALIK whereby various organisations had been declared as Public Authorities upon detailed discussion of the scope of the relevant provisions of Section 2(h) of the RTI Act including the issues of 'Public Funding' and 'Substantial Financing' . 7. The Respondents from the School on their part, in their written submission dated 11.8.11, contended that the Delhi Public School, Rohini is an unaided private School, which is recognized by the Directorate of Education, Govt. of NCT, Delhi. According to them the School is neither directly nor indirectly funded by the Government and it has paid for the cost of the 6000 sq. mts of land as demanded by the DDA and hence the School is not a Public Authority as defined under Section 2 (h) of the RTI Act 2005. The Respondent further stated that education is a state function and all unaided schools like DPS Rohini only supplement the function of promoting high quality education. While the Respondents admitted that provisions of DSEAR, 1973 regulate the Education in Delhi, it has been submitted that the nominees of Directorate of Education as members of the Managing Committee of the School's Board only aid the systematic growth of the organization in a planned manner. Decision 8. At this juncture, it is imperative to revisit the scope of "Public Authority" as defined under Section 2(h) of the RTI Act 2005 for the purposes of deciding whether the Delhi Public School, Rohini is a Public Authority or not. The Section 2(h) of the Act states the following: "……"public authority" means any authority or body or institution of selfgovernment established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) nonGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; The issue before the Commission for deliberation is therefore whether DPS, Rohini is substantially financed, directly or indirectly, by an appropriate Government and is controlled by it or not. Upon perusal of the submissions of both parties and after hearing them, it is noted that the DDA Allotment letter dated 24.2.97 indicates grant of 6000 sq.mts of land to the school at highly subsidized rates ie. Rs. 65 lakhs per acre. The DDA letter dated 24.2.97 also indicates that besides the 6000 sq. mts another plot of land measuring 10,000 sq. mts has also been allotted to the Delhi Public School, Rohini for a play ground on temporary basis on payment of nominal ground rent of only Rs. 10 per Annum with the direction that no structure of even temporary nature shall be raised on this land by the School. The letter also goes on to say that the DDA reserves the right to alter any terms and conditions on its discretion, thereby establishing its control over the way the school uses this land given free to the school by the DDA in a prime area of the Capital, which at today's rate, is valued at several crores of Rupees. 11. The DDA's letter of 24.2.97 interestingly has also laid down certain terms and conditions with respect to even the functioning of the school while indicating ( in paras16 and 18) that the Directorate of Education has the power to derecognize the school if certain conditions are not met. The more relevant terms and conditions in the above mentioned DDA's letter ie. paras 16, 17, 18 21 and 22 are given below: Para16: In the event of derecognition of school by the Directorate of Education, Delhi Administration or any other Competent Authority, the leasee shall be required to pay premium for the land allotted at the market rate prevailing on the date of derecognition of the school or the land with super structure, fixtures, fittings etc. shall revert to the Government on payment of compensation as may be decided by the Government. Para17: The school not increase the relates of the tuition fee without the prior sanction of the Director Education , Delhi Administration and shall follow the provisions of the Delhi School Education Act,/Rules 1973 and other instructions from time to time. Para 18: The Delhi Public School Society shall ensure that percentage of freeship from the tuition fee as laid down under rules by the Delhi Administration from time to time is strictly complied. They will ensure admission to the students belonging to weaker sections to the extent of25% and grant freeship to them. Para 21: The Society shall follow instructions of the Directorate of Education for minimum/maximum encroachment of students in the school new building constructed on land allotted by the Government. Para 22: If the allotment is cancelled for breaches of any terms/conditions of the allotment the possession of the plot/land with building , if any, will be handed over to the DDA by the allottee on the date given in the cancellation notice. The terms and conditions mentioned hereinabove leave little doubt about the fact that the School is expected to follow certain terms and conditions laid down by the DDA/Directorate of Education failing which the School is liable to be derecognized which clearly establishes the fact that the School is under the control of the DDA/DOE. Be that as it may, it is clear from the Audit reports of 2008 and 2009 submitted by the school, that the School has benefited financially, no doubt as a result of the land allotted by DDA, part of which has been given at highly concessional rates and the remaining practically free. The AUDIT reports of 2008 and 2009 indicate Reserves and surplus funds of the school amounting to several crores. 12. The Delhi Public School, Rohini as already stated earlier has been recognized by the Delhi School Education Act and Rules, 1973. It is therefore essential at this stage to also visit different chapters of the Delhi School Education Act, 1973 in order to comprehend further the extent of control the Directorate of Education has over the Delhi Public School. 13. Chapter II, Sub Section 6 of the Delhi School Education and Rules Act, 1973 talks about providing aid to recognized private schools by the Government. It states that ........." the Central Government may, after the due appropriation made by Parliament by law in this behalf and subject to such conditions as may be prescribed , pay to the Administrator , for distribution of aid to recognized private schools , not being primary schools recognized by a local authority, such sums of money as that Government may consider necessary." The Sub Section 6 goes on to say that ...."the authority competent to grant the aid may stop, reduce or suspend aid for the violation of any of the conditions prescribed in this behalf." It is apparent from the earlier paras that the land (6000 sq. mts at concessional rate and 10,000 sq. mts of land at Rs.10/rent for annum) allotted to Delhi Public School, Rohini is but a corollary of Sub Section 6 of the Delhi School Education Act 1973 (subject to compliance with terms and conditions laid down by the Delhi Administration (DDA)). 14. Furthermore, Chapter IV of the DSER Act also clearly lays down the terms and conditions of service of employees of recognized private schools such as DPS, Rohini , while granting the Directorate of Education a statutory right to the Director of Education to have the last say in matters related to suspension, dismissal, removal or reduction in rank of an employee of the school, except when the Management Committee is satisfied that an immediate suspension is necessary by reason of gross misconduct. 15. The additional submissions dated 11.08.2011 sent by the Complainant by fax as also the Audited Balance Sheets of the School emphasize the fact that the school also enjoys exemption from Income Tax on its earnings which alongwith the various benefits flowing to the Delhi Public School in the form of share capital contribution or subsidy or any other form of aid amounting to indirect finances received by the School. 16. It has been admitted by both the parties that two nominees from the Directorate of Education, Govt. of NCT, Delhi are members of the Managing Committee of the Respondent School's Board. In this connection it is crucial that we take cognizance of rule 50 of the Delhi School Education &Rules Act, 1973, in particular of clauses (xviii) and (xix), in the face of the present controversy. The same are being reproduced hereunder: "Rule 50: Conditions for recognition — No private school shall be recognized, or continue to be recognized, by the appropriate authority unless the school fulfills the following conditions, namely: (xviii) the school furnishes such reports and information as may be required by the Director from time to time and complies with such instructions of the appropriate authority or the Director as may be issued to secure the continued fulfillment of the condition of recognition or the removal of deficiencies in the working of the school; (xix) all records of the school are open to inspection by any officer authorized by the Director or the appropriate authority at any time, and the school furnishes such information as may be necessary to enable the Central Government or the Administrator to discharge its or his obligations to Parliament or to the Metropolitan Council of Delhi, as the case may be." 17. The above mentioned paras reflect the various points wherein Government control is evident in the running and administration of the Respondent school, the operative words being "the school furnishes such reports and information as may be required by the Director from time to time" which allows the Directorate to seek any information/report required by them. In fact the copy of RTI reply dated 06.07.2010 from the Directorate of Education indicates that the Directorate of Education is the custodian of all school information by virtue of the nomination of two of its members in the key committee of the School. Thus the information as sought by the Complainant ought to be anyway with the Public Authority ie. the Directorate of Education by virtue of the provisions in the DSER Act. The Delhi Public School, therefore, in any event cannot deny the information to the Directorate of Education. 18. The Commission noted that the Respondent PIO of the school in his written submission to the Commission refuting the Appellant's contention that the Delhi Public School(Rohini) is a Public Authority, has not been able to put forth any compelling counter arguments to those of the Appellant and has failed to convince the Commission that it is not a Public Authority and therefore is not obligated to provide information under the RTI Act. 19. The Hon'ble Delhi High Court while declaring the Indian Olympic Association and Sanskriti School as Public Authorities has held that "….Nongovernment organizations could be of any kind; registered societies, cooperative societies, trusts, companies limited by guarantee or other juristic or legal entities, but not established or controlled in their management, or administration by state or public agencies…." Furthermore, while discussing the purport and scope of the word "substantial financing" (with reference to nongovernment organizations) mentioned in the Section 2 (h) of the RTI Act 2005, the High Court has expanded the scope of the definition of Public Authority when it ruled that "….. This court therefore, concludes that what amounts to "substantial" financing cannot be straightjacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not "majority" financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of nongovernment organization means that it is independent of any manner of government control in its establishment, or management. That the organization does not perform – or predominantly perform – "public" duties too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals. To the extent of such funding, indeed, the organization may be a tool, or vehicle for the executive government's policy fulfillment plan". The High Court has also discussed that: "…… grants by the Government retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort….……..A truly private school would have been under an obligation to return the amount, with some interest……" Considering the above factual matrix of the case at hand, one can sum up that 6000 sq.mts of land has been given to the school at a concessional rate of Rs.65laks per acre and 10,000 sq. mts of land at a highly subsidized nominal ground rent of Rs. 10/per Annum by DDA. The School is under the governance, control and regulation of the Delhi Schools Education Act 1973, Rule 50 whereof mandates disclosure of information in the form of reports etc. to the Director of the Directorate of Education, the Administrator and concerned authority from the Central Government, as already discussed above. The Directorate of Education has appointed two nominees in the key Managing Committee of the School thereby ensuring position of power of managing affairs of the School and having control over the Respondent School. 20. The attention of the Commission is at this stage is once again drawn towards the well settled law in respect of the matters of SANSKRITI SCHOOL etc. versus VEERESH MALIK relied upon by the Complainant and upheld by the Delhi High Court by the judgment dated 07.01.2010 wherein IOA, SANSKRITI SCHOOL and Olympic Association , were held to be "Public Authorities" within the meaning of Section 2 (h) of the RTI Act. 21. India is facing the difficult task of ensuring social justice and equity to all people and the model chosen by the government spreading welfare and its benefits through private schools , which are tasked and assisted for this purpose is commendable. The crucial role that information plays in achieving this objective cannot be understated. It is in this context that Section 2 (h) recognizes that nonstate actors may have responsibilities of disclosing information which would be useful, and necessary for the people they serve, as it furthers the process of empowerment, assures transparency, and makes democracy responsive and meaningful. 22. On consideration of all the above factors, this Commission holds that the Delhi Public School, Rohini fulfils the essential elements of being a private aided school which is substantially financed by the Government, and controlled by different agencies under the Delhi Administration including the DDA and the Directorate of Education. It is therefore, covered by the regime of the RTI Act and can be called a 'Public Authority'. 23. The Commission therefore directs the Principal of Delhi Public School , Rohini to designate an official in the School as the PIO at the earliest as per provisions of Section 5 of the RTI Act 2005 and also to comply with Section 4 of the RTI Act by end of October, 2011. The information sought by the Complainant may be provided to him by 25 September, 2011. He may also be allowed to inspect records and be provided with copies of documents required by him, 50 pages free of cost, the rest at the rate of Rs.2/per page as photocopying charges. 24. The Complaint is disposed of on the above terms. (Annapurna Dixit) Information Commissioner Authenticated true copy (G.Subramanian) Deputy Registrar Cc: 1. Sh. Mohit Goel H. No. F14/ 32, Model Town 2nd, Delhi – 110 009 2. The Prinipal Delhi public School, Sector – 24, Phase – 3, Rohini, New Delhi – 110 085 3. Officer in charge, NIC The decision announced in the open court on 24 August, 2011. Note: In case, the Commission's above directives have not been complied with by the Respondents, the Appellant may file a formal complaint with the Commission under Section 18(1) of the RTIAct, giving (1) copy of RTIapplication, (2) copy of PIO's reply, (3) copy of the decision of the first Appellate Authority, (4) copy of the Commission's decision, and (5) any other documents which he/she considers to be necessary for deciding the complaint. In the prayer, the Appellant may indicate, what information has not been provided. |
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