Delhi High Court
Virendra Singh vs Managing Committee, Haryana ... on 11 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.3108/2017 & C.M. No.13539/2017(stay)
% 11th April, 2017
VIRENDRA SINGH ..... Petitioner
Through: Mr. Piyush Sharma, Advocate.
versus
MANAGING COMMITTEE, HARYANA SHAKTI SR.
SECONDARY SCHOOL AND ORS. ..... Respondents
Through: Ms. Swati Singh Malik,
Advocate for respondent Nos.2
and 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner by this writ petition under Article 226 of the
Constitution of India impugns the order dated 31.3.2017 by which
petitioner has been pre-maturely retired as per the principle contained
in FR 56(j) of the FRSR.
2. Petitioner by virtue of the impugned order therefore is in
effect removed from services and any issue with respect to an employee
of a school in Delhi being removed/terminated from services has to be
challenged by means of filing of an appeal under Section 8(3) of the
Delhi School Education Act, 1973 before the Delhi School Tribunal
(DST). This is categorically so held by the Supreme Court in its
judgment in the case of Shashi Gaur Vs. NCT of Delhi (2001) 10 SCC
445. The said judgment is a short judgment and is reproduced as
under:-
"1. Leave granted.
2. The short question that arises for consideration in this appeal is, whether a
teacher of a private school whose services stood terminated not as a measure
of penalty but on account of the fact that he allegedly did not have the
requisite qualification, could move the Delhi School Tribunal (hereinafter
referred to as 'the Tribunal') against the order of termination, constituted
under Section 11 of the Delhi School Education Act, 1973 (hereinafter
referred to as 'the Act') or not.
3. The appellant being of the view that the impugned order would not come
within the expression "dismissal, removal or reduction in rank" used in Sub-
section (3) of Section 8 of the Act, directly approached the High Court in a
petition under Article 226 of the Constitution of India.
4. A learned Single Judge of the High Court came to the conclusion that
availability of an alternative remedy oust the jurisdiction of the Court and,
therefore, refused to interfere. The appellant approached the Division Bench
in LPA and the order of the learned Single Judge having been confirmed,
the appellant has approached this Court.
5. Mr. Das, the learned senior Counsel appearing for the appellant contends
that Section 8(3) provides for an appeal against an order of dismissal,
removal or reduction in rank and not against any order of termination as is
apparent from the provisions contained in Sub-section (2) of
Section 8, which provides for obtaining prior approval of the Director
before dismissal, removal or reduction in rank or otherwise terminating the
services of an employee of a recognised private school. The very fact of
absence of the expression "otherwise termination" available in sub-section
(2) from the provisions of Sub-section (3) clearly demonstrates that against
an order of termination which does not come within the expression
"dismissal, removal or reduction in rank", the Legislature has not provided
for an appeal to the Tribunal constituted under Section 11 of the Act.
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 wherein this Court had
observed that for applicability of the provisions of Section 11 two
conditions must co-exist, 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 to 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 oust
the jurisdiction of the Court under Article 226 of the Constitution.
9. We are told that the appellant has already approached the Tribunal
aforesaid and we hope the Tribunal would do well in disposing of the matter
at an early date.
10. This appeal stands disposed of with the above observations."
(emphasis added)
3. I put it to the counsel for the petitioner that since this
petition is not maintainable if petitioner agreed that this writ petition
can be transferred for decision to DST, but, the counsel insists on a
judgment on merits.
4. In view of the above position, since there is an alternative
efficacious remedy of petitioner being entitled to challenge the
impugned order before the DST, and since this Court is bound by the
ratio of the judgment of the Supreme Court in the case of Shashi Gaur
(supra) which mandates that it is the DST which will exercise
jurisdiction under Section 8(3) of the Act on the issues covered under
Section 8(3), accordingly, this writ petition is dismissed as petitioner
has an alternative efficacious remedy and hence this Court would not
exercise jurisdiction under Article 226 of the Constitution of India.
5. Dismissed.
APRIL 11, 2017 VALMIKI J. MEHTA, J
Ne
