Full Text
HIGH COURT OF DELHI
Date of Decision: 13th February, 2023
AJIT SARKAR ..... Petitioner
Through: Mr. Nripendra Nath Bain, Advocate.
ORS. ..... Respondents
Through: Mr. Nikhil Palli, Advocate for R-1 and R-2.
Mr. Yeeshu Jain, Additional Standing Counsel with Ms. Jyoti Tyagi, Advocate for
R-3.
JUDGMENT
1. Present writ petition lays a challenge to the impugned order dated 15.07.2022, whereby a major penalty of compulsory retirement from service has been imposed on the Petitioner under Rule 117(b)(ii) of the Delhi School Education Rules, 1973.
2. Preliminary objection is taken by learned counsel appearing on behalf of Respondents No. 1 and 2 to the maintainability of the writ petition on the ground that the penalty of compulsory retirement can only be challenged by the Petitioner by way of an appeal before the Delhi School Tribunal (hereinafter referred to as ‘Tribunal’) constituted under Section 11 of the Delhi School Education Act, 1973 (hereinafter referred to as ‘the Act’).
3. In response to the said objection, learned counsel for the Petitioner submits that the Petitioner has not been dismissed or removed or reduced in rank and has been compulsorily retired and therefore, an appeal shall not lie before the Tribunal which is evident from a plain reading of Section 8(3) of the Act. Reliance is placed in support of the said plea on the judgment of a Division Bench of this Court in Smt. Leela Sharma v. GNCT of Delhi & Ors., 2012 SCC OnLine Del 690 as well as the judgments in Pratul Choudhury v. Air Force Golden Jubilee Institute and Ors., W.P.(C) No. 2348/2020 decided on 15.03.2022 and Ajit Singh v. Directorate of Education & Ors., 2005 SCC OnLine Del 134.
4. Having examined the contentions of the parties with respect to the preliminary objection on maintainability of the writ petition, this Court finds merit in the arguments of Respondents No.1 and 2. The Supreme Court in Shashi Gaur v. NCT of Delhi and Others, (2001) 10 SCC 445, was examining the scope of Section 8(3) of the Act. In the said matter, Petitioner who was a Teacher was terminated for lack of requisite qualification for appointment to the post in question. The question that arose for consideration before the Supreme Court was whether a Teacher of a private school whose services stood terminated not as a penalty but due to lack of requisite qualifications, could file an appeal before the Tribunal, constituted under Section 11 of the Act. After examining the provisions of Section 8(3), the Supreme Court held as follows:-
6. In support of this contention, the counsel also placed reliance on Rule 117 — explanation which indicates that replacement of a teacher who was not qualified on the date of his appointment by a qualified one will not amount to a penalty within the meaning of the said Rule [see Explanation (c)]. The learned counsel also placed before us the observations made by this Court in the case of Principal v. Presiding Officer [(1978) 1 SCC 498: 1978 SCC (L&S) 70] wherein this Court had observed that for applicability of the provisions of Section 11 two conditions must coexist, namely, (i) that the employee should be an employee of a recognised private school, and (ii) that he should be visited with either of the three major penalties, i.e., dismissal, removal or reduction in rank.
7. This judgment and the interpretation put to the provisions of sub-sections (2) and (3) of Section 8 undoubtedly is of sufficient force. But, the question for our consideration would be that, would it be appropriate for us to give a narrow construction to sub-section (3) of Section 8 thereby taking the teachers whose services were terminated not by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal constituted under Section 11 of the Act. The statute has provided for a Tribunal to confer a remedy on the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The governmental authorities having been given certain control over the action of such private management, if an appeal to the Tribunal is not provided to such an employee, then he has to knock the doors of the court under Article 226 of the Constitution which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years.
8. In this view of the matter, we are persuaded to take the view that under sub-section (3) of Section 8 of the Act, an appeal is provided against an order not only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but also against a termination, otherwise except, where the service itself comes to an end by efflux of time for which the employee was initially appointed. Therefore, we do not find any infirmity with the order of the High Court not entertaining the writ application in exercise of its discretion though we do not agree with the conclusion that availability of an alternative remedy ousts the jurisdiction of the court under Article 226 of the Constitution.”
5. A Co-ordinate Bench of this Court in G.D. Goenka Public School and Another v. Vinod Handa and Another, (2019) 262 DLT 154, was engaged in examining the scope and ambit of Section 8(3), in the context of a challenge to the severance of service of a Teacher by reason of resignation. Relying on the judgment of the Supreme Court in Shashi Gaur (supra), the Court held as under:-
32. This Court, therefore, held that the appeal preferred by the respondent before it, in the above judgment, i.e. Deepa Chibber (supra), to the learned Tribunal, was maintainable. xxx xxx xxx
34. The objection of the petitioner, to the entertainment of the respondent's appeal, by the learned Tribunal, on the ground that the said appeal was not maintainable, therefore, merits rejection.”
6. A similar view has been taken by this Court in Ritu Hooda v. Directorate of Education, W.P.(C) 4951/2020 and Sandhya Bindal v. State of NCT of Delhi, W.P.(C) 6975/2020. Very recently, the Supreme Court in Sunil Sikri v. Guru Harkrishan Public School & Anr., 2022 SCC OnLine SC 926 has reaffirmed and reiterated the observations of the Supreme Court in Shashi Gaur (supra) and observed that an appeal will lie to the Tribunal under Section 8(3) in case of dismissal, removal or compulsory retirement.
7. From a reading of the aforementioned judgments as well as provisions of Section 8(3) of the Act, it is luminously clear that ‘compulsory retirement’ by way of penalty can only be challenged before the Tribunal and the writ is not maintainable in this Court. This Court sees no reason why an analogy should not be drawn between a Teacher who is dismissed or removed from service with the one whose services have come to an end by acceptance of resignation or compulsory retirement as a penalty.
8. Insofar as the reliance of the Petitioner on the judgment in Smt. Leela Sharma (supra) is concerned, in my considered view, the judgment does not aid the Petitioner. In the said case, an appeal was filed against the judgment of the learned Single Judge of this Court dismissing a writ petition on the ground that challenge to compulsory retirement could only be laid by an appeal before the Tribunal. The Division Bench disagreed with the learned Single Judge on the ground that the issue that actually emanated was whether at all there exists a power, not by way of penalty, but by way of an administrative decision, to compulsorily retire a Teacher of a recognized school and since the matter related to the very power of the School Management, the question could not be decided by the Appellate Tribunal and was required to be considered by the High Court. The question posed by the Division Bench was ‘whether FR 56 (j) is applicable to teachers of recognized school under the Act and governed by its provisions’ and the ancillary issue that arose was whether the Court could read applicability of Fundamental Rules into the conditions of service of a Teacher of a recognized school, governed by the Delhi School Education Act and Rules, 1973.
9. The judgment in the case of Pratul Choudhury (supra) is also inapplicable to the present case, which is evident from the opening paragraph of the judgment, where the relief sought was with respect to the grant of benefits under the MACP Scheme as well as a challenge to the ACR of the Petitioner therein pertaining to the year 2013-14. In Ajit Singh (supra), the Court has elucidated the salutary principle that a writ petition under Article 226 of the Constitution of India is maintainable, even if there is an alternative remedy. This proposition is beyond any debate. However, the present case relates to a challenge to a penalty of compulsory retirement, which by virtue of the judgments of the Supreme Court in Shashi Gaur (supra) and Sunil Sikri (supra) can be challenged only before the Tribunal under a statutory provision i.e. Section 8(3) of the Act and cannot be stated to be an alternative remedy.
10. For the aforesaid reasons, this Court finds force in the contention of the Respondents that the writ is not maintainable and cannot be entertained.
11. Writ petition is accordingly dismissed as not maintainable, granting liberty to the Petitioner to take recourse to the appropriate remedy, available in law.
12. It is made clear that this Court has not expressed any opinion on the merits of the case and it is open to the Petitioner to raise all contentions raised in the present petition amongst other grounds for assailing the impugned order, whereby penalty of compulsory retirement has been imposed.