Friday, September 2, 2011

Re: [HumJanenge] DELHI PUBLIC SCHOOL ROHINI IS A PUBLIC AUTHORITY, CIC DECIDES

Dear Mr Gupta

I am sorry to say that your great hero Mr Shailesh Gandhi evidently "respectfully disagrees" with every other "commission".

On the one hand you praise IC(SG) for his super fast decisions and high disposal rate, on the other hand he passes chop-suey decisions like this which are completely contrary
http://rti.india.gov.in/cic_decisions/CIC_SG_C_2011_000488_13840_M_64211.pdf

Now please take your choice. Fast decisions without hearing appellants or (superficially) reasoned decisions like IC(AD) passed in Mohit's case ??? I look forward to your reply..

Sarbajit


On Fri, Sep 2, 2011 at 4:08 PM, M.K. Gupta <mkgupta100@yahoo.co.in> wrote:
Yes, if the school has been given land on subsidized rates by any govt. agency.  File an RTI enclosing copy of this decision. await result, if says under under the ambit of RTI, go to the CIC.

--- On Fri, 2/9/11, swamy39@gmail.com <swamy39@gmail.com> wrote:

From: swamy39@gmail.com <swamy39@gmail.com>
Subject: Re: [HumJanenge] DELHI PUBLIC SCHOOL ROHINI IS A PUBLIC AUTHORITY, CIC DECIDES
To: humjanenge@googlegroups.com
Date: Friday, 2 September, 2011, 9:54 AM


Is Convent of Jesus and Mary too? Swamy

Sent from BlackBerry® on Airtel


From: "M.K. Gupta" <mkgupta100@yahoo.co.in>
Date: Thu, 1 Sep 2011 21:39:06 +0530 (IST)
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.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.