1077/2005 (filed by the management) and 826/2011 (filed by the employee), by which the Division Bench of the High Court has allowed the appeal preferred by the respondent(s) herein – management and has quashed and set aside the judgement and order passed by the learned Single Judge and the order passed by the learned Tribunal quashing and setting aside the order of termination dated 06.08.1998 and consequently upheld the same, the employee has preferred the present appeals.
Director of Education and Ors., (2016) 6 SCC 541 dealt with the pari materia provisions of the Delhi School Education Act (hereinafter referred to as the DSE Act), taking the view that before termination of an employee, prior approval of the Director of Education is mandatory and required, the Division Bench of the High Court has not followed the decision of this Court in the case of Raj Kumar (supra) by erroneously observing that in the case of Raj Kumar (supra), this Court had not considered the earlier decision in the case of T.M.A. Educational Institutional Tribunal; (2010) 3 WLC 21 reading down Section 18 of the Act, 1989, observed that in case of a termination after the disciplinary enquiry/proceedings prior approval of the Director of Education is not required, the Division Bench of the High Court has allowed the writ appeal and has set aside the orders passed by the learned Tribunal as well as the learned Single Judge and has upheld the order of termination. It is submitted that though not permissible, observing and holding that the decision of this Court in the case of Raj Kumar (supra), the Division Bench of the High Court has not followed the decision in the case of Raj Kumar (supra) on the ground that in the case of Raj Kumar (supra), this Court had not considered the decision in the case of T.M.A.
It is submitted that as such while passing the judgment and order in the case of Raj Kumar (supra) this Court had taken into consideration at least in more than 8-9 paragraphs the decision of this Court in the case of T.M.A. It is submitted that therefore, the Division Bench of the High Court has materially erred in taking the contrary view than the decision of this Court in the case of Raj Kumar (supra) and the Division Bench of the High Court has materially erred in relying upon the Larger Bench’s judgment/decision in the case of Central Academy Society (supra) and taking the view that in case of termination followed by the disciplinary proceedings/enquiry, Section 18 requiring the prior approval of the Director of Education shall not be applicable.
3 It is further submitted by the learned counsel appearing on behalf of the appellant that the decision in the case of Raj Kumar (supra) has been subsequently followed by the Delhi High Court in the case of Mangal Sain Jain Vs. 1 It is vehemently submitted by the learned counsel appearing on behalf of the management that as such the decision of this Court in the case of Raj Kumar (supra) and T.M.A. 3 It is further submitted that even otherwise in the present case, the order of termination is not required to be set aside on the ground that the prior approval of the Director of Education was not obtained as the disciplinary committee was consisted of District Education Officer.
The learned Tribunal set aside the order of termination on non-compliance of Section 18 of the Act, 1989 inasmuch as before terminating the services of the appellant – employee prior approval of the Director of Education was not obtained. 5.1
From the impugned judgment and order passed by the High Court, it appears that before the High Court the decision of this Court in the case of Raj Kumar (supra) taking a contrary view and taking the view that before terminating the services of an employee of a recognized institution prior approval of the Director of Education is required was pressed into service. Therefore, the Division Bench of the High Court is factually incorrect in observing that while deciding the decision in the case of Raj Kumar (supra) this Court had not considered the decision of this Court in the case of T.M.A. 2 Now so far as the decision of this Court in the case of Raj Kumar (supra) is concerned, this Court was considering pari materia provisions under the DSE Act.
Pai Foundation (supra), it is specifically observed and held by this Court that in case of a recognized institution, before terminating the services of an employee, prior approval of the Director of Education is required. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short “the DSE Act”) was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment.
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Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.”
5 Even on fair reading of Section 18 of the Act, 1989, we are of the opinion that in case of termination of an employee of a recognized institution prior approval of the Director of Education or an officer authorised by him in this behalf has to be obtained. 6 Therefore, on true interpretation of Section 18 of the Act, 1989, it is specifically observed and held that even in case of termination/removal of an employee of a recognized institution after holding departmental enquiry/proceedings prior approval of the Director of Education has to be obtained as per first proviso to Section 18 of the Act, 1989.
2 Now so far as Civil Appeal
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No 101/2023 arising out of the impugned judgment and order passed in D.B. SHAH)…………………………………J.
Case Title: GAJANAND SHARMA Vs. ADARSH SIKSHA PARISAD SAMITI (2023 INSC 58)
Case Number: C.A. No.-000100-000101 / 2023
