Delhi High Court
Jatinder Kaur Saini vs School Management Of G.H.P.S., ... on 10 April, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8412/2011 & conn.
% 10th April, 2013
1. W.P.(C) No. 8412/2011
JATINDER KAUR SAINI ...... Petitioner
Through: Mr. Raj Kumar Sherawat, Advocate
VERSUS
SCHOOL MANAGEMENT OF G.H.P.S., FATEH NAGAR & ORS.
...... Respondents
Through: Ms. Manpreet Kaur Bhasin, Adv. for R-1 &
R-2.
Mr. Anuj Tyagi, Adv. for Mr. Sachin
Chopra, Adv. for R-3.
Mr. J.D.Bhardwaj, DEO, Zone-14, Director
of Education.
2. W.P.(C) No. 8413/2011
GURMEET KAUR ...... Petitioner
Through: Mr. Raj Kumar Sherawat, Advocate
VERSUS
SCHOOL MANAGEMENT OF G.H.P.S., FATEH NAGAR & ORS.
...... Respondents
Through: Ms. Manpreet Kaur Bhasin, Adv. for R-1 &
R-2.
Mr. Anuj Tyagi, Adv. for Mr. Sachin
Chopra, Adv. for R-3.
Mr. J.D.Bhardwaj, DEO, Zone-14, Director
of Education.
3. W.P.(C) No. 8421/2011
SWARANJIT KAUR ...... Petitioner
Through: Mr. Raj Kumar Sherawat, Advocate
VERSUS
SCHOOL MANAGEMENT OF G.H.P.S., FATEH NAGAR & ORS.
...... Respondents
Through: Ms. Manpreet Kaur Bhasin, Adv. for R-1 &
R-2.
Mr. Anuj Tyagi, Adv. for Mr. Sachin
Chopra, Adv. for R-3.
Mr. J.D.Bhardwaj, DEO, Zone-14, Director
of Education.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. Counsel for the petitioner presses for two reliefs in this writ petition which is
filed by the petitioner/teacher. The first relief is for quashing of the suspension
order dated 7.10.2011, and which suspended the petitioner because the petitioner
had given a B.Ed Degree from a fake university at the time of employment. The
second relief claimed is for quashing of the show cause notice dated 1.9.2011
whereby the petitioner has been called to give explanation with respect to the
aspects as stated in the show cause notice of the appointment of the petitioner of
not being against a vacancy and being made in violation of the Delhi School
Education Act, 1973 and its Rules.
3. So far as the second relief is concerned, the learned counsel for the
respondent no.1-school states that the show cause notice in question will in fact be
followed by a chargesheet which will be issued by the Disciplinary Authority,
which will be in terms of the Delhi School Education Act, 1973 and its Rules and
the petitioner will have complete liberty in the Departmental Proceedings to put
her case.
In view of the aforesaid, statement of the counsel for the respondent
no.1 that the disciplinary proceedings will be conducted in accordance with the
provision of the Delhi School Education Act and Rules, 1973 counsel for the
petitioner, very fairly does not press the relief of stay of the show cause notice.
4. On the aspect of the challenge to the suspension order dated
7.10.2011, counsel for the petitioner relies upon the provision of Section 8(4) of
the Delhi School Education Act, 1973 and the judgment of the Supreme Court in
the case of G.Vallikumari Vs. Andhra Education Society & Ors. (2010) 2 SCC
497. On the basis of the said provision and the Supreme Court judgment, it is
argued that since the respondent no.1 has neither taken prior or ex post facto
approval of suspension, suspension order is not valid. Section 8(4) provides that
prior approval is required for suspension.
5. The issue as to whether a private unaided school requires or does not
require the approval of the Director of Education for suspending of an employee is
no longer res integra and has been decided upon by a Division Bench of this Court
in the case of Kathuria Public School Vs. Director of Education, 123 (2005) DLT
89(DB). In Kathuria Public School (supra), the Division Bench of this Court has
held that for a private unaided school, no prior or ex post facto approval is required
for suspension of a teacher/employee of a school. In fact, in another very recent
Division Bench judgment this court in Delhi Public School & Anr. Vs. Shalu
Mahendroo & Ors.(2013) 196 DLT 147(DB) has similarly held that no prior
approval of the Director of Education is required before suspending of an
employee and nor is an ex post facto approval is necessary.
6. In my opinion, the judgment in the case of G.Vallikumari (supra)
relied upon by the petitioner has no application because the issue in that case was
not regarding any prior or ex post facto approval required of the Director of
Education for suspension of an employee. The issue in that case was whether in
unaided minority schools for dismissal or removal etc of an employee there was or
was not required any permission of the Director of Education and it was held that
with respect to minority unaided institutions, for dismissal of an employee or
removal of an employee, no prior permission is required of the Director of
Education as Section 8(2) of the Delhi School Education Act, 1973 (which
required prior permission for dismissal etc) did not apply to minority unaided
schools.
7. Though counsel for the petitioner contends that the issue decided in
the case of G.Vallikumari (supra) is much larger of application of Section 12 of
the Delhi School Education Act, 1973, however, ultimately, the judgment in the
case of G.Vallikumari (supra) basically reiterates the ratio of the Supreme Court
in the case of Frank Anthony Public School Employees' Assn. Vs. Union of India,
(1986) 4 SCC 707, which struck down the constitutional validity of Section 8(2) of
the Delhi School Education Act, 1973 so far as the minority unaided educational
institutions are concerned. I note that the Division Bench of this Court in the case of
Kathuria Public School (supra) has considered the judgment of the Supreme Court in
the case of Frank Anthony Public School (supra) , however, by reference to the larger
Bench judgment of the Supreme Court in the case of T.M.A.Pai Foundation & Ors. Vs.
State of Karnataka & Ors. (2002) 8 SCC 481, the Division Bench came to the
conclusion that no prior permission or ex post facto permission is required for
suspending of an employee of a private unaided school.
The relevant observation of the Division Bench in the case of Kathuria
Public School (supra) in this regard read as under:-
"33. In our considered view, the judgment in T.M.A.Pai Foundation's case
(supra) clearly and unambiguously sets out the legal position insofar as private
unaided non-minority educational institutions are concerned. It must be borne
in mind while considering the other prior judgments of the Supreme Court that
T.M.A.Pai Foundation's case (supra) is a Constitutional Bench judgment of
eleven Judges, which has gone into the general principles which are required to
be followed. Thus, even if certain findings in respect of specific statutory
provisions have been reached earlier by certain Benches of the Apex Court, it
is the findings of T.M.A.Pai Foundation's case (supra), which would hold the
fort. It cannot be countenanced that the observations made in T.M.A.Pai
Foundation's case (supra) are in the nature of passing reference. The
judgment of the Apex Court is fully binding on us. There are specific
paragraphs dealing with different nature of institutions and private unaided
non-minority educational institutions have been specifically dealt with. There
cannot be any doubt that those paragraphs dealing with the subject matter have
to be read as a whole and not by picking and choosing portions of the same.
We are, however, in no doubt of the legal principle laid down in T.M.A.Pai
Foundation's case (supra). Para 61 of the said judgment clearly states that in
respect of such schools „maximum autonomy‟ has to be granted including in
respect of rights of appointment and disciplinary powers. If the observations
had rested at that, it may have been possible to contend that the provisions
requiring prior or ex post facto permission for certain nature of disciplinary
proceedings do not infringe „maximum autonomy‟ since the concept of
„maximum autonomy‟ has not been defined and it is at least not „total
autonomy‟. This is, however, not so. The grievance of the management has
been considered in para 63 of the judgment dealing with the requirement in
certain cases of prior permission by formulating dealing with the requirements
in certain cases of prior permission by formulating such rules. The conclusions
have been set forth in para 64 and 65. It has been emphasised that in case of a
private institution, the relationship between the management and employees is
contractual in nature. The action has to take place in pursuance to a fair
disciplinary inquiry. The question, however, remains as to who would judge as
to whether the inquiry is fair or not. For this purpose, it has been observed that
the State Government shall determine in consultation with the High Court, the
judicial Forum, in which the aggrieved teacher can file an appeal against the
decision of the management concerning disciplinary action or termination of
service. Thus, to facilitate the redressal of grievances of teachers and
employees, a special forum is required to be provided not leaving such a
person to the recourse of normal civil proceedings. In the enactment in
question, such a Tribunal is already provided though the power is restricted as
aforesaid only to dismissal, removal or reduction in rank. However, it is in
these cases only that Sub-section (2) of Section 8 provides for prior approval of
the Director. This is, of course, apart from the issue of suspension where also
such prior approval or ex post facto approval within the stipulated time is
required. Thus, the remedy has been provided through a intervening
confirming authority. In fact, the Supreme Court has gone as far as to state
that where there are no such Tribunals in existence, the judicial forum shall be
provided and till such a specialised Tribunal is set up, the right of filing the
appeal would lie before the District Judge or the Additional District Judge as
notified by the Government. Thus, the judgment itself ensures the creation of a
judicial forum.
34. It has also been observed in T.M.A.Pai Foundation's case (supra) in
para 64 that there was no reason why the management of a private unaided
non-minority educational institution should seek the consent or approval of any
Government authority before taking such action. Not only this, it has been
further observed that it will not be necessary for the institution to get prior
permission or ex post facto approval of a Government authority while taking
disciplinary action against the teacher or any other employee. The matter is no
longer open to debate in view of such a categorical pronouncement by the
Supreme Court.
35. In our considered view, there can be no manner of doubt that in view of
the pronouncement in T.M.A.Pai Foundation's case (supra), any such
restriction requiring pre or post approval for disciplinary proceedings would
not be permissible. This is the pronouncement of law by the Supreme Court
under Article 142 of the Constitution.
38. There can be no doubt in view of the aforesaid that insofar as the
unaided schools are concerned, the requirement of compliance of prior
approval of the Director under Sub-section (4) of Section 8 insofar as the
suspension is concerned, is not permissible. We are conscious of the
pronouncements in Frank Anthony Public School Employees' Association's
case (supra) dealing with the aspect of Sub-section (4) of Section 8. However,
the discussion in the said judgment was in the context of the applicability to a
minority institution and where such a provision would violate the mandate of
Article 30(1) of the Constitution providing for special protection to minority
institutions. In view of the pronouncement in T.M.A.Pai Foundation's case
(supra) in respect of disciplinary action as a whole, it cannot be said that the
said provisions can be made applicable to unaided non-minority schools. It
may be added at this stage that the Supreme Court as far back as in Katra
Education Society, Allahabad v. State of Uttar Pradesh & Ors., AIR 1966 SC
1307 had held the classification between privately managed institution and
those maintained by the Government as justifiable and non-violative of Article
14 of the Constitution in respect of U.P.Intermediate Education Act. It is, thus,
not necessary that what is good and applicable to institutions maintained by the
Government should also apply to private unaided institutions.
44. The result of the aforesaid is that the provisions of Sections 8(2) and
8(4) of the said Act, Rules 115(2) and (5) and 120(1)(d)(iii) and (iv) and
120(2) of the said Rules requiring prior and ex post facto approval for
disciplinary proceedings would have no application to private unaided schools.
As a sequator to that, Sub-section (5) of Section 8 would also really have no
application to such private unaided schools. Needless to say that these
directions are in respect only of unaided non-minority institutions since the
relevant provisions have been held as inapplicable only to such institutions and
that was the question raised before this Hon‟ble Court. We draw strength for
taking such a view even for the observations of the Supreme Court in Sunil
Batra v. Delhi Administration & Ors., etc. AIR 1978 SC 1675, where Justice
V.R.Krishna Iyer, J. had observed that the interpretation of statutes which
preserves and sustains the validity of the provision should be adopted and the
Courts with functional flexibility should explore the meaning or meanings to
adopt that construction which humanely constitutionalizes the statute in
question. Thus, these provisions may have application to other institutions, but
in view of the observations of the Supreme Court in T.M.A.Pai Foundation's
case (supra) in respect of unaided non-minority institutions, these provisions
would have no application to such institutions and such an interpretation based
really on a reading down of the statutory provision would be the acceptable
mode of interpretation of the statute." (emphasis added)
8. I may note that the Division Bench judgment in the case of Kathuria
Public School (supra) has been overruled on one point by a Full Bench of this
Court so far as the requirement of going to the Delhi School Tribunal for any relief
qua the suspension of employee is concerned, however that issue does not affect
this case because I am entertaining the writ petition and not directing the petitioner
to approach the Delhi School Tribunal to challenge his suspension.
9. In view of the above, the writ petition is dismissed so far as the
challenge to the suspension order dated 7.10.2011 is concerned holding that there
is neither prior nor ex post facto approval required for suspension of an employee
of the respondent no.2-school, which is an unaided private school. So far as the
aspect of challenge to the show cause notice is concerned, the writ petition is
dismissed as withdrawn with the aforesaid observations. The disciplinary
proceedings which will be conducted by the respondent no.2 against the petitioner
will be in accordance with the provision of the Delhi School Education Act and
Rules, 1973 including Rules 118 to 120 thereof.
10. Though there is no final relief claimed in the writ petition for
suspension allowance, counsel appearing for the respondent no.1 states that the
suspension allowance will be paid to the petitioner in accordance with the relevant
Rule 116 of the Delhi School Education Rules, 1973.
11. The writ petition is accordingly disposed of, leaving the parties to bear
their own costs.
W.P.(C) No. 8413/2011
In view of the judgment passed in W.P.(C) 8412/2011, the relief of
challenge to the suspension order is dismissed, and relief with respect to the
challenge to the chargesheet is disposed of with the observation that it is agreed
between the parties that the Departmental Proceedings which will be conducted
against the petitioner, will be in accordance with the Delhi School Education Act
and Rules, 1973 and Rules 118 to 120 thereof.
W.P.(C) No. 8421/2011
In view of the judgment passed in W.P.(C) 8412/2011, the relief of
challenge to the suspension order is dismissed, and relief with respect to the
challenge to the chargesheet is disposed of with the observation that it is agreed
between the parties that the Departmental Proceedings which will be conducted
against the petitioner, will be in accordance with the Delhi School Education Act
and Rules, 1973 including Rules 118 to 120 thereof.
APRIL 10, 2013 VALMIKI J. MEHTA, J.
ib
