Delhi Public School & Anr. vs Shalu Mahendroo & Ors
2012 Latest Caselaw 6553 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 9th November, 2012

+                              LPA No.737/2012

      DELHI PUBLIC SCHOOL & ANR.                ..... Petitioners
                   Through: Mr. Rakesh Tikku, Sr. Adv. with Mr.
                            Puneet Mittal, Mr. Ankur Aggarwal &
                            Mr. Nitin Sharma, Advs.

                                  Versus

    SHALU MAHENDROO & ORS.                    ..... Respondents

Through: Mr. V. Shekhar, Sr. Adv. with Ms. Shaveta Chaudhary, Advs. for R-1.

Mr. Rajeev Sharma, Adv. for R-2.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 30.10.2012 of the

learned Single Judge to the extent it, while issuing notice of W.P.(C)

No.6646/2012 preferred by the respondent No.1, staying till the next date of

hearing i.e. 19.12.2012, the order of the Disciplinary Authority of the

appellant School of placing the respondent under suspension.

2. The respondent No.1 impugned the order of suspension inter alia on

the ground that the same had been made without obtaining the prior

permission in writing of the Director of Education as required under Section

8(4) of the Delhi School Education Act, 1973. It was the contention of the

counsel for the appellant appearing on advance notice before the learned

Single Judge that no such approval was required, the appellant being an

unaided School. Reliance in this regard was placed on the judgment of the

Division Bench of this Court in Kathuria Public School Vs. Director of

Education 123 (2005) DLT 89. On the contrary, the counsel for the

respondent No.1 had relied on judgment of a Full Bench of this Court in

Presiding Officer Delhi School Tribunal Vs. Government of NCT of Delhi

180 (2011) DLT 551. The learned Single Judge however, after noticing the

said contentions, granted ad-interim stay observing as under:

"7. Heard ld. Counsel for the parties. Admittedly, Section 8 of Delhi School Education Act, 1973 has been complied, which is mandatory. Para 44 of Kathuria Public School (supra) has bearing in case of disciplinary proceedings not in case of suspension.

8. Therefore, till the next date of hearing, the operation of the impugned order dated 03.10.2012 shall remain stayed. I here make it clear that the respondent/school may

continue with the departmental enquiry, if any, against the petitioner.

9. The respondents shall file their response to the instant application within a period of four weeks with an advance copy to the other side. Rejoinder thereto, if any, shall be filed within two weeks thereafter."

The counsels admit the typographical error, and the learned Single

Judge to have held "Admittedly, Section 8 of Delhi School Education Act,

1973 has „not‟ been complied, which is mandatory".

3. The senior counsel for the appellants has contended that the learned

Single Judge has wrongly held that the judgment of the Division Bench in

Kathuria Public School supra, has bearing in the case of disciplinary

proceedings and not in the case of suspension. It is argued that not only

does the said judgment specifically refer to suspension but even otherwise

suspension is a part of disciplinary proceedings and once the learned Single

Judge held the judgment of the Division Bench in Kathuria Public School

to be applicable in the case of disciplinary proceedings, he erred in holding

the same to be having no application in case of suspension.

4. The senior counsel for the respondent No.1 on the contrary has i)

challenged the very maintainability of the present appeal; ii) contended that

the judgment of the Division Bench in Kathuria Public School stands

overruled by Presiding Officer Delhi School Tribunal supra, of the Full

Bench; and iii) contended that the judgment of the Division Bench in

Kathuria Public School is contrary to Section 8(4) supra and is solely based

on the judgment of the Supreme Court in T.M.A. Pai Foundation Vs. State

of Karnataka (2002) 8 SCC 481 and has misread the judgment of the

Supreme Court.

5. However, the learned Single Judge, as will be obvious from the

aforesaid, has neither held the judgment of the Division Bench to have been

overruled by the Full Bench nor could the learned Single Judge have held

the Division Bench to be not laying down the correct law. We are however

not inclined to enter into the said controversy if at all open to be urged, in

this appeal. This appeal, as aforesaid is against the ad-interim order of stay

of the order of the Disciplinary Authority of suspension, made on the very

first date of hearing even before the appellant who is the respondent in the

writ petition has had the opportunity to file counter affidavits / replies. It

will be open to the respondent No.1 to, during the hearing of the writ

petition before the learned Single Judge, urge all the aforesaid points.

Suffice it is for us to only prima facie observe that the Division Bench in

Kathuria Public School has unequivocally laid down that the prior approval

of the Director of Education is not required in the case of unaided

Educational Institutions and the reference to the Full Bench though

emanating from Kathuria Public School was not on the said aspect. The

Full Bench thus was not concerned with the said part of the judgment of the

Division Bench. We may also notice that the senior counsel for the

respondent No.1 had contended that even if prior approval was not required,

post suspension approval was necessary for continuance of suspension

beyond a period of 15 days. However again, the Division Bench in

Kathuria Public School in Para No.44 of the judgment has held not only

prior but also ex post facto approval for disciplinary proceedings provided

for under Section 8 (2) and 8(4) of the Act and Rules 115(2) and (5) and

120(1)(d)(iii) and (iv) and 120(2) of the Delhi School Education Rules, 1973

to be not applicable to unaided schools.

6. Not only so, we are also of the opinion that there could be no ex parte

or ad-interim stay of order of the Disciplinary Authority of suspension

except in the rarest of rare cases. No such finding has been returned by the

learned Single Judge. Reference in this regard can be made to Uttar

Pradesh Rajya Krishi Utpadan Mandi Parishad Vs. Sanjiv Rajan 1993

Supp (3) SCC 483 laying down that orders of suspension should not be

interfered with by the Courts and to State of Uttar Pradesh Vs. Sandeep

Kumar Balmiki (2009) 17 SCC 555 holding that interim order staying the

order of termination ought not to be passed inasmuch as it tantamounts to

automatically allowing the writ petition without permitting the parties to

place their respective cases at the time of final hearing of the writ petition; it

was observed that the High Court had "fallen in grave error in staying the

order of termination during the pendency of the writ petition" and that "final

relief could not be granted at the interim stage". However, we refrain from

giving any final opinion on this aspect also since the application for interim

relief is still pending consideration before the learned Single Judge and has

not been disposed of.

7. For all the aforesaid reasons, we are of the opinion that the order of

the learned Single Judge granting ad-interim stay of the order of the

Disciplinary Authority of the appellant School of suspension cannot be

sustained.

8. The senior counsel for the respondent No.1 has however ultimately

challenged the very maintainability of this appeal. It is contended that no

appeal lies against such an ad-interim order. It is highlighted that the appeal

has been filed under Section 10 of the Delhi High Court Act, 1966 as well as

under the Letters Patent. With reference to the judgment of the Division

Bench of the Himachal Pradesh High Court in State of Himachal Pradesh

Vs. Ajit Kumar ILR 1976 5 HP 24 stated to have been approved in R.J.

Shah Vs. Himachal Pradesh State Electricity Board (2007) 10 SCC 620, it

is contended that Section 10(2) of the Delhi High Court Act, 1966 is not a

source of appellate power and Clause 10 of Letters Patent cannot be invoked

to appeal from an interim stay order granted by a Single Judge in Civil Writ

petition which is by way of Extra Ordinary Civil Jurisdiction.

9. Attention of the senior counsel for the respondent is however invited

to the recent judgment dated 19.10.2012 of the Full Bench of this Court in

FAO (OS) No.684/2010 titled Jaswinder Singh Vs. Mrigendra Pritam

Vikramsingh Steiner laying down that an order passed by a Single Judge, in

exercise of Ordinary Original Civil Jurisdiction, and which under the Code

of Civil Procedure is non-appealable, but which meets the test of a

"judgment" i.e. decides matters of moment or affects vital and valuable

rights of parties and which works serious injustice to the parties concerned,

an appeal to the Division Bench would lie under Section 10 of the Delhi

High Court Act and not under Clause 10 of the Letters Patent. It was further

held that Clause 10 of the Letters Patent refers to an appeal from the Single

Judge to a Division Bench, when writ jurisdiction is exercised as Extra

Ordinary Civil Jurisdiction and against a judgment as defined in Shah

Babulal Khimji Vs. Jayaben D. Kania (1981) 4 SCC 8 i.e. an order

deciding valuable rights of the parties or order of the moment.

10. We are of the opinion that an order granting ad-interim stay of the

order of the Disciplinary Authority of suspension would certainly be an

order of the moment or an order affecting the valuable rights of the parties in

the facts of the present case inasmuch as the same enables the respondent

No.1, whom the Disciplinary Authority of the appellant has deemed

appropriate to suspend, to report for work and enter the appellant School and

when granting of such interim orders has been deprecated by the Supreme

Court. We therefore do not find any merit in the said plea also of the

respondent No.1. Even otherwise, it has been held by the Division Bench of

this Court in Prakash Atlanta JV Vs. National Highways Authority of

India MANU/DE/0986/2009 that an LPA lies against such an order.

11. We accordingly allow this appeal and set aside the order dated

30.10.2012 of the learned Single Judge staying the operation of the order of

the Disciplinary Authority of the appellant of placing the respondent No.1

under suspension. We however leave all other pleas, save to the

maintainability of this appeal, open for the parties to urge before the learned

Single Judge and for decision of the learned Single Judge. Needless to state

that any observations made herein shall not come in the way of the learned

Single Judge dealing with the application for interim relief or preferably the

writ petition itself in accordance with law.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 09, 2012 „gsr‟