Full Text
HIGH COURT OF DELHI
Date of Decision: 27th March, 2023
VINITA TYAGI ..... Petitioner
Through: Ms. S. Janani and Ms. Sarika Rai, Advocates.
Through: Mr. R.K. Saini, Advocate for R-1.
Mr. Yeeshu Jain, Additional Standing Counsel with Ms. Jyoti Tyagi and
Ms. Manisha, Advocates for DoE.
JUDGMENT
1. Present application has been preferred on behalf of Respondent No. 1 for fixing a date of hearing and disposal of the writ petition.
2. Issue notice.
3. Ms. S. Janani, learned counsel accepts notice on behalf of the Petitioner.
4. For the reasons stated in the application, the same is allowed.
5. Writ petition is taken up for hearing today i.e. 27.03.2023.
6. The date of 13.04.2023 stands cancelled.
7. Application is disposed of.
8. By this writ petition, Petitioner assails the impugned order dated KUMAR Location: 11.10.2018 passed by the Delhi School Tribunal (hereinafter referred to as the ‘Tribunal’) in Appeal No. 69/2016, whereby penalty of termination awarded to the Petitioner was upheld. Writ of mandamus is sought directing Respondent No. 1/ Bala Pritam Guru Harikrishan International Public School (hereinafter referred to as the ‘School’) to reinstate the Petitioner with all consequential benefits, in accordance with law.
9. Petitioner was appointed as TGT (English) by the School on 01.10.2002. According to the Petitioner, the School was functioning smoothly under the previous Management, however, as soon as the new Board of Management took over in the year 2011, litigation started between the School and its staff. Petitioner had an excellent track record as a Teacher but the trouble started when she demanded that her salary be correctly re-fixed by granting Dearness Allowance, increments and ACP benefits etc. Charge-sheet was issued to the Petitioner on 12.01.2015 which led to initiation of disciplinary proceedings, culminating into penalty of ‘termination’ vide order dated 19.04.2016.
10. Petitioner challenged the termination order before the Tribunal and amongst other grounds, one of the grounds was that termination order was passed without the prior approval of the Director of Education (‘DoE’) and reliance was placed on the judgment of the Supreme Court in Raj Kumar v. Director of Education and Others, (2016) 6 SCC 541. Tribunal dismissed the Appeal and held that prior approval under Section 8(2) of the Delhi School Education Act, 1973 (hereinafter referred to as the ‘Act’) is required only when an employee is legally appointed and terminated on account of some delinquency and not in a case, as the present one, where the appointment itself is illegal and thus null and void.
11. Assailing the findings of the Tribunal, the only point canvassed on behalf of the Petitioner by Ms. Janani is that the termination order is bad in law having been passed without the prior approval of DoE as required under Section 8(2) of the Act and is against the binding dicta of the Supreme Court in Raj Kumar (supra).
12. The question that arises for consideration in the present case is whether the termination order of the Petitioner stands vitiated, having been passed without prior approval of the DoE. Section 8(2) of the Act provides that no employee of a recognized private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director of Education. The answer to the question, in my view, is not far to seek as this issue stands decided by the Supreme Court in the case of Raj Kumar (supra). In the said case, this Court dismissed the writ petition challenging the order of the Tribunal and upheld the termination order of Raj Kumar, which was assailed before the Supreme Court. On the basis of the contentions advanced by the parties, the Supreme Court framed four issues arising before the Court for consideration and issue No. (iii), which is relevant for the present case is as follows:- “15.3. (iii) Whether the provision of Section 8(2) of the DSE Act is applicable to the facts of the instant case?”
13. Contention of the Appellant was that Section 8(2) of the Act is a substantive right provided for safeguarding the conditions of service of an employee and termination of the service of the Appellant without obtaining prior permission of the Director, renders the action of the School void. It was also contended that when statutory provisions provide a procedure to do an act in a particular manner, it should be done in that very manner or not at all. Counsel for the School, on the other hand, contended that there was no requirement to KUMAR Location: comply with Section 8(2) of the Act and reliance was placed on a decision of this Court in Kathuria Public School v. Director of Education, 2005 SCC OnLine Del 778 and the judgment of the Constitution Bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. After deliberating on the contentions and examining the provisions of the Act, the Supreme Court rejected the contentions advanced by the School and held that Section 8(2) of the Act is a procedural safeguard in favour of an employee to ensure that an order of termination or dismissal is not passed without the prior approval of DoE. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognized private school. Relevant paras are as follows:-
46. The State Legislature is empowered to enact such statutory provisions in relation to educational institutions, from Schedule VII List II Entry 11 of the Constitution of India, which reads as: “11. Education including universities.…” (emphasis supplied) 47. A number of legislations across the country have been enacted which deal with the regulation of educational institutions, which contain provisions similar to the one provided for under Section 8(2) of the DSE Act. One such provision came for consideration before a Constitution Bench of this Court in Katra Education Society v. State of U.P. [Katra Education Society v. State of U.P., AIR 1966 SC 1307] The impugned provisions therein were certain sections of the amended Intermediate Education Act (U.P. Act 2 of 1921). Section 16-G of the Intermediate Education (Amendment) Act, 1958 provided that the Committee of Management could not remove or dismiss from service any Principal, Headmaster or teacher of a college or school without prior approval in writing of the Inspector. The Amendment Act also contained other provisions providing for governmental control over certain other aspects of the educational institutions. Adjudicating upon the competence of the
KUMAR Location: State Legislature to enact the amending Act, this Court held as under: (AIR pp. 1310-11, paras 8 & 10) “8. Power of the State Legislature to legislate under the head ‘education including universities’ in Schedule VII List II Entry 11 would prima facie include the power to impose restrictions on the management of educational institutions in matters relating to education. The pith and substance of the impugned legislation being in regard to the field of education within the competence of the State Legislature, authority to legislate in respect of the maintenance of control over educational institutions imparting higher secondary education and for that purpose to make provisions for proper administration of the educational institutions was not denied. But it was said that the impugned Act is inoperative to the extent to which it seeks to impose controls upon the management of an educational institution registered under the Societies Registration Act and managed through trustees, and thereby directly trenches upon legislative power conferred by List I Entry 44 and List III Entries 10 and 28. This argument has no substance. This Court has in Ayurvedic and Unani Tibia College v. State of Delhi [Ayurvedic and Unani Tibia College v. State of Delhi, AIR 1962 SC 458] held that legislation which deprives the Board of Management of a Society registered under the Societies Registration Act of the power of management and creates a new Board does not fall within List I Entry 44, but falls under List II Entry 32, for by registration under the Societies Registration Act the Society does not acquire a corporate status. It cannot also be said that the pith and substance of the Act relates to charities or charitable institutions, or to trusts or trustees. If the true nature and character of the Act falls within the express legislative power conferred by List II Entry 11, merely because it incidentally trenches upon or affects a charitable institution, or the powers of trustees of the institution, it will not on that account be beyond the legislative authority of the State. The impact of the Act upon the rights of the trustees or the management of a charitable institution is purely incidental, the true object of the legislation being to provide for control over educational institutions. The amending Act was therefore within the competence of the State Legislature and the fact that it incidentally affected the powers of the trustees or the management in respect of educational institutions which may be regarded as charitable, could not distract from the validity of the exercise of that power. ***
10. … If the management fails to comply with the directions made by the Director, that Officer may after considering the explanation or representation, if any, given or made by the management, refer the case to the Board for withdrawal of recognition or recommend to the State Government to proceed KUMAR Location: against the institution under sub-section (4) and the powers which the State Government may exercise after being satisfied that the affairs of the institution are being mismanaged or that the management has wilfully or persistently failed in the performance of its duties, include the power to appoint an Authorised Controller to manage the affairs of the institution for such period as may be specified by the Government. The provision is disciplinary and enacted for securing the best interests of the students. The State in a democratic set up is vitally interested in securing a healthy system of imparting education for its coming generation of citizens, and if the management is recalcitrant and declines to afford facilities for enforcement of the provisions enacted in the interests of the students, a provision authorising the State Government to enter upon the management through its Authorised Controller cannot be regarded as unreasonable.” (emphasis supplied) From a perusal of the above judgment [Katra Education Society v. State of U.P., AIR 1966 SC 1307] of the Constitution Bench, it becomes clear that the State Legislature is empowered in law to enact provisions similar to Section 8(2) of the DSE Act.
48. At this stage, it would also be useful to refer to the Statement of Objects and Reasons of the DSE Act, 1973. It reads as under: “In recent years the unsatisfactory working and management of privately managed educational institutions in the Union Territory of Delhi has been subjected to a good deal of adverse criticism. In the absence of any legal power, it has not been possible for the Government to improve their working. An urgent need is, therefore, felt for taking effective legislative measures providing for better organisation and development of educational institutions in the Union Territory of Delhi, for ensuring security of service of teachers, regulating the terms and conditions of their employment. … The Bill seeks to achieve these objectives.” A perusal of the Statement of Objects and Reasons of the DSE Act would clearly show that the intent of the legislature while enacting the same was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. xxx xxx xxx
50. The Division Bench of the Delhi High Court, thus, erred in striking down Section 8(2) of the DSE Act in Kathuria Public School [Kathuria Public School v. Director of Education, 2005 SCC OnLine Del 778: ILR (2005) 2 Del 312: (2005) 123 DLT 89: (2005) 83 DRJ 541] by placing reliance on the decision of this Court in T.M.A. Pai [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481: 2 SCEC 1], as the subject-matter in controversy therein was not the security of tenure of the employees of a school, rather, the question was the right of educational institutions to function KUMAR Location: unfettered. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.
51. The Division Bench of the Delhi High Court, while striking down Section 8(2) of the DSE Act in Kathuria Public (2005) 83 DRJ 541] has not correctly applied the law laid down in Katra Education Society [Katra Education Society v. State of U.P., AIR 1966 SC 1307], wherein a Constitution Bench of this Court, with reference to provision similar to Section 8(2) of the DSE Act and keeping in view the object of regulation of an aided or unaided recognised school, has held that the regulation of the service conditions of the employees of private recognised schools is required to be controlled by educational authorities and the State Legislature is empowered to legislate such provision in the DSE Act. The Division Bench wrongly relied upon that part of the judgment in Katra Education Society [Katra Education Society v. State of U.P., AIR 1966 SC 1307] which dealt with Article 14 of the Constitution and aided and unaided educational institutions, which had no bearing on the fact situation therein. Further, the reliance placed upon the decision of this Court in Frank Anthony Public School Employees' Assn. v. Union of India [Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707: (1987) 2 ATC 35] is also misplaced as the institution under consideration in that case was a religious minority institution.
52. The reliance placed by the learned counsel appearing on behalf of the respondents on T.M.A. Pai [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481: 2 SCEC 1] is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in Kathuria Public (2005) 83 DRJ 541] is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in Katra Education Society [Katra Education Society v. State of U.P., AIR 1966 SC 1307]. Therefore, the decision in Kathuria Public School [Kathuria Public School v. Director of Education, 2005 SCC OnLine Del 778: ILR (2005) 2 Del 312: (2005) 123 DLT 89: (2005) 83 DRJ 541], striking down Section 8(2) of the DSE Act, is bad in law. xxx xxx xxx
55. The respondent Managing Committee in the instant case did KUMAR Location: not obtain prior approval of the order of termination passed against the appellant from the Director of Education, Govt. of NCT of Delhi as required under Section 8(2) of the DSE Act. The order of termination passed against the appellant is thus, bad in law.”
14. Significantly, the Supreme Court in a very recent judgment in Gajanand Sharma v. Adarsh Siksha Parisad Samiti and Others, 2023 SCC OnLine SC 54, has reaffirmed and reiterated that in case of termination/removal of an employee of a recognized institution, after holding departmental enquiry/proceedings, prior approval of DoE has to be obtained. In fact, the Supreme Court has observed that the judgment of Raj Kumar (supra) was binding upon the High Court and it erred in not following the decision, despite the same having been brought to its notice. Be it noted that the Supreme Court in Gajanand Sharma (supra), was dealing with termination of an employee under Section 18 of Rajasthan Non-Governmental Educational Institutions Act, 1989 which is pari materia with Section 8(2) of the Act and reads as follows:-
15. The Supreme Court set aside the judgment of the Division Bench of the High Court wherein the termination order passed without the prior approval of DoE was upheld and restored the order of the Tribunal setting aside the order of termination. Relevant paras are as under:-
17. Similar is the provision so far as Section 18 of the Act, 1989 is concerned which reads as under:— “18. Removal, dismissal or reduction in rank of employees.- Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken; Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained.”
18. In the case of Raj Kumar (supra) while dealing with the pari materia provision under the DSE Act and after considering the decision of this Court in the case of T.M.A. Pai Foundation (supra), it is specifically observed and held by this Court that in case of a recognized institution, before terminating the services of an employee, prior approval of the Director of Education is required. Therefore, a contrary view taken by the Larger Bench of the High Court relied upon by the Division Bench of the High Court is not a good law. It is required to be noted that the decision of this Court in the case of Raj Kumar (supra) has been considered by this Court in the case of Marwari Balika Vidyalaya (supra) and also by the Delhi High Court in the case of Mangal Sain Jain (supra). In the case of Marwari Balika Vidyalaya (supra) this Court considered the decision in the case of Raj Kumar (supra) and object and purpose of Section 8 of DSE Act in paragraphs 13 and 14 as under:—
14. This Court has laid down in Raj Kumar v. Director of Education [Raj Kumar v. Director of Education, (2016) 6 SCC 541: (2016) 2 SCC (L&S) 111] that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short “the DSE Act”) was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to the reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.”
19. Even on fair reading of Section 18 of the Act, 1989, we are of the opinion that in case of termination of an employee of a recognized institution prior approval of the Director of Education or an officer authorised by him in this behalf has to be obtained. In Section 18, there is no distinction between the termination, removal, or reduction in rank after the disciplinary proceedings/enquiry or even without disciplinary proceedings/enquiry. As per the settled position of law the provisions of the statute are to be read as they are. Nothing to be added and or taken away. The words used are “no employee of a recognized institution shall be removed without holding any enquiry and it further provides that no final order in this regard shall be passed unless prior approval of the Director of Education has been obtained.” The first part of Section 18 is to be read along with first proviso. Under the circumstances, taking a contrary view that in case of dismissal/removal of an employee of a recognized institution which is after holding the departmental enquiry the prior approval of the Director of Education is not required is unsustainable and to that extent the judgment of the Larger Bench of the Rajasthan High Court in the case of Central Academy Society (supra) is not a good law.
20. Therefore, on true interpretation of Section 18 of the Act, 1989, it is specifically observed and held that even in case of termination/removal of an employee of a recognized institution after holding departmental enquiry/proceedings prior approval of the Director of Education has to be obtained as per first proviso to Section 18 of the Act, 1989.
21. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the Division Bench of the High Court restoring the order of termination which as such was without obtaining the prior approval of the Director of Education deserves to be quashed and set aside and is accordingly quashed and set aside. The order of learned Tribunal setting aside the order of termination confirmed by the learned Single Judge is hereby restored. Consequently, the appellant shall have to be reinstated in service and considering the fact that the respondent(s) is/are unaided institution and the order of termination was passed as far as back in the year 1998, we direct that the appellant shall be entitled to 50% of the back wages, however, he shall be entitled to all other benefits notionally including the seniority etc., if any.”
16. In view of the judgments of the Supreme Court in Raj Kumar (supra) and Gajanand Sharma (supra), it is not open to the School to even argue that the provisions of Section 8(2) of the Act are not mandatory or binding on the School. Thus, the order, whereby services of the Petitioner were terminated without the prior approval of DoE, cannot be sustained and accordingly, the impugned order passed by the Tribunal upholding the said order and dismissing the Appeal of the Petitioner, deserves to be set aside, being untenable in law. The distinction that the Tribunal has sought to draw between termination on account of the appointment being illegal per se and termination for any other reason, is wholly misconceived, in view of the binding dicta of the Supreme Court that any form of termination by a recognized school without following the mandate of Section 8(2) of the Act is illegal.
17. Mr. R.K. Saini, learned counsel appearing on behalf of the School, after going through the judgments as referred to above, fairly concedes that the case of the Petitioner is covered on all four corners by the judgments and thus, the impugned order of the Tribunal, which is contrary to the said dicta, cannot be sustained. Mr. Saini, however, submits that insofar as the pay and allowances of the Petitioner for the period she has been out of service and till she is reinstated are KUMAR Location: concerned, the same have to be regulated under the provisions of Rule 121 of the Delhi School Education Rules, 1973 and that discretion vests with the Managing Committee of the School. To this submission of Mr. Saini, there is no contest by the counsel for the Petitioner.
18. Accordingly, the impugned order of the Tribunal dated 11.10.2018 in Appeal No. 69/2016 is quashed and set aside along with the order dated 19.04.2016, whereby the services of the Petitioner were terminated. Petitioner will be reinstated forthwith. The Managing Committee of the School shall take a decision with respect to the salary and allowances of the Petitioner for the period she has been out of service till her reinstatement, within a period of four weeks from today, in accordance with provisions of Rule 121 of the Delhi School Education Rules, 1973 and the law on the subject. Needless to state that all outstanding dues will be cleared by the School within 3 weeks thereafter. School will also communicate to the Petitioner the calculations of the amounts disbursed and it is open to the Petitioner to seek recourse to appropriate remedies available in law, in case of any surviving grievance(s) in this respect.
19. Writ petition is allowed in the aforesaid terms and disposed of.