The Jain Shiksha Samiti (South) ... vs Director Of Education (South) And ...
2002 Latest Caselaw 1832 Del

JUDGMENT

Anil Dev Singh, J.

1. This appeal is directed against the order of the learned single Judge dated 28th September, 2001 in C.W. 5983/2001.

2. The second respondent was working as a Trained Graduate Teacher (TGT) in the appellant's school. On 9th August, 1984 she was placed under suspension. On 16th November, 1984, the second respondent was charge-sheeted. An opportunity was given to the second respondent to furnish her reply to the charges. On 17th December, 1984, the appellant issued a notice to the second respondent as no reply had been received from her. The notice also called upon the second respondent to show cause why her services be not terminated. Even she did not respond to the aforesaid show cause notice. In the circumstances, the Managing Committee of the school in its meeting held on 26th December, 1984 decided to terminate the services of the second respondent. Consequent upon the decision of the Managing Committee, the services of the second respondent were terminated by the appellant vide its order dated 27th December, 1984.

3. Aggrieved by the order of termination, the second respondent filed a writ petition, being writ petition No. 487/1985, before this Court on 18th May, 1998. The writ petition of the second respondent was treated as an appeal under Section 8(3) of the Delhi School Education Act, 1973 (for short the 'Act') and was forwarded to the Appellate Authority, the Delhi School Tribunal, constituted under the Act. The appeal was registered as Appeal No. 14/1998. The Delhi School Tribunal by its order dated 13th August, 1998 accepted the appeal and directed the appellant to reinstate the second respondent with all consequential benefits. The Tribunal passed the aforesaid order as it was of the opinion that the services of the second respondent were terminated in violation of Section 8(3) of the Act read with Rule 120 of the Delhi School Education Rules, 1974 (for short 'the Rules') inasmuch as the appellant did not obtain prior approval of the Director of Education before terminating the services of the second respondent. Pursuant to the order of the Delhi School Tribunal, the second respondent was reinstated by the appellant school. The arrears of salary, however, were not paid to her.

4. The second respondent, being aggrieved by the action of the appellant is not paying the arrears of salary filed I.A. No. 1/99 in disposed of appeal No. 14/1998 before the Delhi School Tribunal seeking arrears of salary and other benefits for the period she remained out of service. The appellant submitted before the Delhi School Tribunal that the Director of Education was statutorily bound to pay 95% of the arrears of salary of the second respondent. It was also contended that the appellant was liable to pay to the extent of 5% of the arrears of salary. The Delhi School Tribunal while rejecting the submission of the appellant by its order dated 9th August, 2001, directed the school management to pay 100% of the arrears of salary to the second respondent as it had wrongly terminated her services without obtaining the consent of the Director of Education. The Delhi School Tribunal was of the opinion that the management must bear the burden of its own wrong.

5. Not satisfied with the order passed by the Tribunal dated 9th August, 2001, the appellant filed a fresh writ petition in this court. On hearing the learned counsel for the parties, the learned single Judge concurred with the order passed by the Delhi School Tribunal and dismissed the writ petition by its order dated September 28, 2001. It is this order of the learned single Judge which has been challenged before us.

6. We have heard learned counsel for the parties. It is not disputed that the school is not charging any fee from the students, being an aided school. It is also not disputed that as per Rule 64(1)(c) of the Rules the school is to deposit only 5% share towards pay and allowances, pension, gratuity, provident fund and other prescribed benefits of teachers with the Administrator every month. The 95% share of salaries, medical facilities, pension, gratuity, provident fund of the teachers is required to be contributed by the Director of Education as grant in aid. Rule 64(1)(c) of the Rules reads as follows:-

"64. No aid to be given unless suitable managing committee.-

(1) No school shall be granted aid unless its managing committee gives an undertaking in writing that:

xxxxx

(c) It shall deposit its five percent share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator every month.

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7. At this stage, it will also be necessary to notice Section 10(2) of the Act. This section reads as under:-

"10. Salaries for employees-

(1) xxxxx

(2) The managing committee of every aided school shall deposit every month, its share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator and the Administrator shall disburse, or cause to be disbursed, within the first week of every month, the salaries and allowances to the employees of the aided schools".

8. Thus, it is clear that the school is required to contribute only 5% of the salary of the teachers. On the other hand, a duty has been cast on the state to pay 95% of the salaries, allowances, etc. of the teachers under the statutory provisions.

9. It is the function of the State to impart education to the children since right to education, as held in Miss Mohini Jain v. State of Karnataka and Ors., , and Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., , is a fundamental right flowing from Articles 14 and 21 read with Articles 40 and 45 and Preamble to the Constitution. But large number of private schools, aided by the State, are also disseminating education. It is convenient for the State to pay 95% of the pay and allowances of the teachers of the aided schools rather than run the schools by itself. The State is saved from creating the infrastructure for the schools and from managing and running them. It appears to us that the Director of Education cannot escape its statutory liability to pay 95% of its share of the arrears of salary of the second respondent just because the order of termination has been set aside by the Delhi School Tribunal for the failure of the appellant to comply with Rule 8(3) of the Rules. Neither the statute nor the rules cast any liability on the school to contribute 95% of the pay and allowances of the teachers. It is note worthy that since the managing committee of the school had failed to comply with the provisions of the Act, action could have been taken against the school under Rule 69(f) of the Rules 1973. Rule 69(f) reads as follows:-

"69. Stoppage, reduction or suspension of grant-in-aid:

Subject to the provisions of Rule 65 any grant-in-aid to a school may be stopped, reduced or suspended at any time by the administrator-

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(f) If the procedure as laid down under Sub-section (3) of Section 8 of the Act or Rule 118 or 120 have not been followed in the case of termination or dismissal from service of an employee or in the case of compulsory retirement or reduction in rank of an employee, notwithstanding that any or such employee is reinstated in service or restored to his original position as a result of the decision of the court of Law or any Competent Authority.

Provided that no aid shall be stopped, reduced or suspended except after giving to the managing committee of the school a reasonable opportunity of showing cause against any of the proposed action."

10. Since no action was taken by the Director of Education for violation of Section 8(3) of the Delhi Education Act, 1974, it cannot now turn around and say that it is not liable to pay its share of 95% of the pay and allowances of the teachers. In case the respondent, Director of Education, had taken action under Rule 69(f) of the Rules, even then it would have been its liability to pay the entire amount including 5% of the share of the school to respondent No. 2. We may also refer to Rule 72. Rule 72 reads as follows:-

"72. Payment of managing committee's share of salaries and allowances where aid has been stopped, reduced or suspended-

Where aid to any school has been stopped, reduced or suspended, and the managing committee of the school has, by reason of such stoppage, reduction, or suspension omitted or failed to deposit its share of the salaries and allowances of the employees of the school, the Administrator shall pay, or cause to be paid, the managing committee's share of the salaries and allowances of the employees and authorise the Accounts Officer of the Directorate of Education, Delhi, to draw in part or in full the aid which would have been payable to the school for such stoppage, reduction or suspension and utilise the sum so drawn towards payment of the managing committee's share of the salaries and allowances of the employees of the school, and where such withdrawal and payment is made by the Accounts officer he shall keep separate accounts for the withdrawal and expenditure."

11. Having regard to the aforesaid discussion and keeping in view Section 10 of the Delhi School Education Act, 1973, read with Rule 64 (1)(c), 69(f) and 72 of the Delhi School Education Rules, 1973, we hold that it is the liability of the Director of Education to pay 95% of the arrears of salary of the second respondent.

12. In view of the aforesaid discussion, the impugned orders passed by the learned single Judge and the Tribunal are hereby set aside. The Director of Education is directed to pay the remaining amount of 95% of its share to the teachers within a period of four weeks.