JUDGMENT
Sanjay Kishan Kaul, J.
1. “Education” is the substratum for development of any civilization. Progress of education requires discipline both amongst the teachers and taught. The absence in a large measure of both has been impediment in our country at least for the last couple of decades. This has resulted in both statutory enactments and judicial pronouncements setting the norms for the manner in which education both at school and higher levels is to be imparted.
2. The Delhi School Education Act, 1973 (hereinafter to be referred to as, “the said Act”) and the Rules enacted there under being The Delhi School Education Rules, 1973 (hereinafter to be referred to as, “the said Rules”) came into being as a step in this direction. The preamble to the said Act states as under:
“An Act to provide for better organization and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto.”
3. The Apex Court has had many occasions to deal with the various aspects arising from imparting of education in the country. These include matters such as admission criteria, fee structure, administration of institutions, qualification and requirement of teachers and lecturers and their discipline and manner of employment. It is unfortunate that a fair amount of litigation has arisen on account of disputes between the management and the teaching staff in our country, which has resulted in its own jurisprudential development. There are both aided and unaided institutions. There are further rights of the minority institutions protected under the scheme of our Constitution. All these aspects have been commented upon by the Apex Court.
4. “Education is discipline for adventure of life”, said Alfred North Whitehead. The pre-requisite naturally is that the teacher himself observes this discipline. The allegation of lack of such discipline and norms with counter allegations of motivated action against the teachers has given rise to this batch of writ petitions. The controversy, however before us, is limited. It is not necessary to go in depth into the facts and circumstances of each case in view of the larger issue raised, which has resulted in these matters being placed before the Bench of two Judges in view of the challenge to the validity of certain provisions of the said Act and the said Rules. The real basis of the challenge on behalf of the schools in question arises from pronouncements of a Constitution Bench of eleven Judges of the Supreme Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 = AIR 2003 SC 355. The Constitution Bench by a majority judgment decided various issues relating to education including rights of minority institutions, aided and unaided institutions both at school level and of higher learning.
5.It is not in dispute that the two institutions in question are not minority institutions and are unaided private institutions. The matter pertains and is limited to the issue of employment and removal of teachers at school level. Thus, it is not necessary to embark upon the wider discussion of T.M.A. Pai Foundation”s case (supra). Thus, out of the questions framed and answered by the Constitution Bench, only Questions 10 and 11 may be referred to, which are as under:
“Q. 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?
and
Q. 11. What is the meaning of the expressions “education” and “educational institutions” in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression “education” in the articles of the Constitution means and includes education at all levels, from the primary school level up to the postgraduate level. It includes professional education. The expression “education institutions” means institutions that impart education, where “education” is as understood hereinabove.
The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30.
All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.”
6.The most material aspects are the observations of the Supreme Court and the conclusions reached while considering these questions and answering the same. The majority view as reflected in the judgment of B.N. Kirpal, C.J. (as his Lordship then was) includes a separate discussion in respect of ‘private unaided non-minority educational institutions’. This is reflected in paras 48 to 66 of the judgment. Autonomy in education has been emphasized and it has been observed that governmental domination of educational process must be resisted. A private institution has been held entitled to constitute its own Governing Body, though the State or the University concerned may prescribe the qualifications. In this context, it has been observed, “It will, however, be objectionable if the State retains the power to nominate specific individuals on the Governing Bodies”. The regulation of educational institutions has been restricted to the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) apart from taking measures for prevention of maladministration by the person in-charge of the management.
7.The Apex Court also emphasized the difference in the administration of a private unaided institution and a Government aided institution with a larger role in the latter. The nature of autonomy of unaided private schools has been emphasized in para 61 in the following terms:
“61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged….”
A reference to the aforesaid observation makes it clear that the concept of “maximum autonomy” has been emphasized particularly in respect to the right of appointment and disciplinary powers of the teachers and staff. The more detailed discussion on this aspect is contained in the following paragraphs:
“63. It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the government or the university are clearly loaded against the management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee.
64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational tribunal be set up in each district in a state – the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings indifferent districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the district judge or additional district judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The state government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.”
8.The challenge made in the writ petitions to various provisions of the said Act and the said Rules are in respect of such provisions, which require prior approval for any disciplinary action including in respect of even suspension. A further challenge is to the provisions requiring the presence of a nominee of the Director of Education on the disciplinary authority. The challenge is, thus, based on the judgment in T.M.A. Pai Foundation”s case (supra), which had held that there was no reason for the management of a private unaided educational institution to seek consent or approval of any governmental authority before taking any disciplinary action and it is in the ordinary relationship of master and servant to be governed by the terms of contract of the employment, which would hold the field. The observations are to the effect that there is no necessity for either prior permission or ex-post facto approval of governmental authority while taking the disciplinary action against the teacher or any other employee. The rights of such a teacher have, however, been protected by providing for a Tribunal to hear the aggrieved teacher so that the teacher is not compelled to go through the route of normal civil litigation in respect of a master-servant relationship and the District Judge has to act as the Tribunal pending necessary enactments in this behalf. It is in view of the observations of the Supreme Court that the claim made in the petitions are that any such provisions requiring prior permission or concurrence or ex-post facto approval would not withstand the scrutiny of a constitutional challenge and would be violative of the provisions of Article 19(1)(g) of the Constitution of India (hereinafter to be referred to as, “the Constitution”). It may, however, be noticed that the said Act already provides for the constitution of a Tribunal under Section 11 of the said Act. Such an Appellate Tribunal is, however, restricted in exercise of powers only in respect of matters dealing with dismissal, removal or reduction in rank in view of the provisions of sub-section (3) of Section 8 of the said Act.
9.The Government of National Capital Territory of Delhi and the charged employees have both defended such provisions as being salutary in nature to protect the interests of teachers. It has, thus, been contended that these provisions having a statutory flavour cannot be struck down in view of the fact that despite the observations in T.M.A. Pai Foundation”s case (supra), these provisions were not struck down as ultra vires in the said judgment. Not only this, reliance has been placed on the observations made in earlier judgment of the Apex Court in Frank Anthony Public School Employees Association v. Union of India & Ors., AIR 1989 SC 311 where certain provisions of the said Act were upheld while striking down other provisions in respect of minority institutions. It may be noticed that this judgment is by a Bench of two Judges of the Supreme Court.
10.Before embarking on a discussion on various provisions, it would be useful to refer to judgment of the Supreme Court in Brahmo Samaj Education Society & Ors. v. State of W.B. & Ors., (2004) 6 SCC 224 delivered by a Bench of two Judges. The effect of the pronouncement in T.M.A. Pai Foundation”s case (supra) was discussed. It was observed in para 10 as under:
“10. When a larger Bench consisting of eleven Judges of this Court in T.M.A. Pai has declared what the law on the matter is, we do not want to dilute the effect of the same by analysing various settlements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take note of the declarations of law made by this Court in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein.”
11.Now coming to the issue of various provisions to which a challenge has been laid in the present proceedings. The constitutional validity of the provisions of Sections 8(2) and 8(4) of the said Act and the provisions of Rules 115(2) & (5), 118(iii) & (iv), 120(1)(d)(iii) & (iv) and 120(2) of the said Rules has been impugned. These are all provisions in relation to the requirement of permissions or nomination of Members by the Director of Education. In order to appreciate the challenge, it is necessary to discuss the scheme of the said Act. Chapter II deals with the establishment, recognition, management of, and aid to schools. This is so since the said Act envisages the recognition of private schools, which are aided in the form of maintenance grant from the Central Government, Administrator or local authority. Chapter IV deals with the terms and conditions of service of employees of a recognized private school. Section 8 of the said Chapter is as under:
“8. Terms and conditions of service of employees of recognised private schools – (1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognised private schools:
Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act.
(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.
(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11.
(4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director:
Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under section 9, of the employee:
Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approval by him before the expiry of the said period.
(5) Where the intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.”
12.The constitution of a Tribunal is provided in Section 11 of the said Act, which is as under:
“11. Tribunal. — (1) The Administrator shall, by notification, constitute a Tribunal, to be known as the “Delhi School Tribunal”, consisting of one person:
Provided that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office.
(2) If any vacancy, other than a temporary absence, occurs in the office of the presiding officer of the Tribunal, the Administrator shall appoint another person, in accordance with the provisions of this section, to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled.
(3) The Administrator shall make available to the Tribunal such staff as may be necessary in the discharge of its functions under this Act.
(4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.
(5) The Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sitting.
(6) The Tribunal shall for the purpose of disposal of an appeal preferred under this Act have the same powers as are vested in a court of appeal by the Code of Civil Procedure, 1908 (5 of 1908) and shall have the power to stay the operation of the order appealed against on such terms as it may think fit.”
13.Section 12 of the said Act provides that Chapter IV shall not apply to an unaided minority school. Chapter V deals with the provisions applicable to unaided minority schools.
14.The challenge, thus, in so far as the said Act is concerned, is to the provisions of sub-section (2) of Section 8, which requires prior approval of the Director for dismissal, removal, reduction in rank or termination of services otherwise by the school management. The further challenge is to sub-section (4) of Section 8, which provides restrictions even in case of a suspension. Thus, the Managing Committee of a recognized private school is mandated to take a prior approval for any suspension. The first proviso, however, permits the management to suspend without prior approval in case immediate suspension is necessary by reason of gross misconduct, but the second proviso further stipulates that the suspension shall remain in force for a period of not more than 15 days from the date of suspension unless it has been communicated to the Director and approved by him before expiry of the said period. Thus, even in case of such immediate suspension for its continuance beyond 15 days, it has to meet the twin criteria. Such twin criteria requires not only a communication to the Director of Education, but even his consent. It may also be noticed that reference in both the provisions is to a recognized private school. A ‘private school’ has been defined in sub-section (r) of Section (2) (being the definition clause), which is as under:
“2. Definitions — In this Act, unless the context otherwise requires :-
(r) “private school” means a school which is not run by the Central Government, Administrator, a local authority or any other authority designated or sponsored by the Central Government, Administrator or a local authority;”
A ‘recognised school’ is defined in sub-section (t) of Section 2 as under:
“(t) “recognized school” means a school recognized by the appropriate authority;”
An ‘aided school’ has been defined in sub-section (d) of Section 2 as under:
“(d) “aided school” means a recognized private school which is receiving aid in the form of maintenance grant from the Central Government, Administrator or a local authority or any other authority designated by the Central Government, Administrator or a local authority;”
The net effect is that in respect of the provisions of Section 8 of the said Act, no distinction has been made in respect of “unaided private school” and the provisions have been made applicable even in respect of such schools, which receive no aid from any authority.
15.In so far as the said Rules are concerned, the power to make such rules is conferred under Section 28 of the said Act. Rule 115 deals with the issue of suspension. The relevant sub-rules of Rule 115 are as under:
“115. Suspension. —
(2) No order for suspension shall remain in force for more than six months unless the managing committee, for reasons to be recorded by it in writing, directs the continuation of the suspension beyond the period of six months;
Provided that where a suspension is continued beyond a period of six months, the Director may, if he is of opinion that the suspension is being unreasonably prolonged, revoke the order of suspension.
(5) (a) An order of suspension made or deemed to have been made in these rules shall continue to remain in force until it is modified or revoked by the managing committee or the Director.
(b) Where an employee is suspended or is deemed to have been suspended and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the managing committee may for reasons to be recorded by it in writing, direct that the employee shall continue to be under suspension until the termination of all or any such proceeding.
(c) An order of suspension made or deemed to have been made under these rules may, at any time be modified or revoked by the managing committee or in the case of an aided school, by the Director.”
16.Rule 118 of the said Rules refers to the disciplinary authority in respect of employees and constitution of the disciplinary authority for every recognized private school, whether aided or not, is to consist of the persons mentioned in the said Rule. Rule 118 is as under:
“118. Disciplinary authorities in respect of employees. — The disciplinary committee in respect of every recognised private school, whether aided or not, shall consist of —
(i) the chairman of the managing committee of the school;
(ii) the manager of the school;
(iii) a nominee of the Director, in the case of an aided school, or a nominee of the appropriate authority, in the case of an unaided school;
(iv) the head of the school, except where the disciplinary proceeding is against him and where the disciplinary proceeding is against the Head of the School, the Head of any other school, nominated by the Director;
(v) a teacher who is a member of the managing committee of the school; nominated by the Chairman of such managing committee.”
17.The procedure for imposition of a major penalty is provided for in Rule 120 of the said Rules. The provisions challenged are as under:
“120. Procedure for imposing major penalty. — (1) No order imposing of an employee any major penalty shall be made except after an inquiry, held, as far as may be, in the manner specified below :
(d) the disciplinary authority shall consider the record of the inquiry and record its findings on each charge and if the disciplinary authority is of opinion that any of the major penalties should be imposed, it shall —
(i) furnish to the employee a copy of the report of the inquiry office, where an inquiry has been made by such officer;
(ii) give him notice in writing stating the action proposed to be taken in regard to him and calling upon him to submit within the specified time, not exceeding two weeks, such representation as he may wish to make against the proposed action;
(iii) on receipt of the representation, if any, made by the employee, the disciplinary authority shall determine what penalty, if any, should be imposed on the employee and communicate its tentative decision to impose the penalty to the Director for his prior approval;
(iv) after considering the representation made by the employee against the penalty, the disciplinary authority shall record its findings as to the penalty which it proposes to impose on the employee and send its findings and decision to the Director for his approval and while sending the case to the Director, the disciplinary authority shall furnish to him all relevant records of the case including the statement of allegation charges framed against the employee, representation made by the employee, a copy of the inquiry report, where such inquiry was made, and the proceedings of the disciplinary authority.
(2) No order with regard to the imposition of a major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Director.
…”
Thus, wherever a role is sought to be assigned in terms of the consent from Director of Education, the challenge has been laid to the said Rules.
18.Learned senior counsel for the petitioners initially advanced elaborate arguments by reference to various judgments of the Apex Court. It was, however, brought to the notice of learned senior counsel that a large number of these judgments deal with the rights of minority institutions and would, thus, have no direct bearing on the controversy in issue. Learned senior counsel could not really dispute this proposition since the challenge was by unaided private schools, which were not minority institutions and the challenge was restricted to the requirement of prior or ex-post facto approval or the requirement of a Director”s nominee on the disciplinary authority. It would, thus, not be necessary to go into a detailed discussion of the various judgments except to the extent as would be directly relevant to the matter in issue.
19.The first judgment referred to was In re. The Kerala Education Bill, 1957, A.I.R. 1958 SC 956, which is a Constitution Bench judgment of the Bench of seven Judges. Reliance was placed on the observations made in para 31 stating, “Power of dismissal, removal, reduction in rank or suspension is an index of the right of management and that is taken away by clause 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right.” Though the judgment discusses the right of a minority institution, yet this portion was relied upon to advance the submission that the power in this behalf has a direct link with the right of management and since the right of management has been protected in view of the observations in T.M.A. Pai Foundation”s case (supra), no such restrictions can be placed even on unaided private institutions.
20.Learned senior counsel for the petitioners also sought to rely upon judgment of the Supreme Court in The Ahmedabad St. Xaviers College Society & Anr., etc. v. State of Gujarat & Anr., AIR 1974 SC 1389; Lily Kurian v. Sr. Lewina & Ors., (1979) 2 SCC 124; and All Saints High School, Hyderabad & Ors. v. Government of Andhra Pradesh & Ors., (1980) 2 SCC 478, but these are all judgments relating to the rights of minority institutions. However, it is necessary to make reference to judgment of the Supreme Court in Frank Anthony Public School Employees” Association”s case (supra) and Mrs. Y. Theclamma v. Union of India & Ors., AIR 1987 SC 1210. These are judgments again dealing with minority institutions, but provisions of the said Act came to be considered in the said judgments.
21.In Frank Anthony Public School Employees” Association”s case (supra), the applicability of the provisions of Section 8 of the said Act to unaided minority schools was considered as a challenge was laid to the same. It was held that sub-section (2) of Section 8 requiring prior approval of the Director for dismissal, removal, reduction in rank or other termination of service of an employee of a recognized private school offends Article 30(1) and hence could not be applied to unaided minority schools. However, the provision of sub-section (3) of Section 8 of the said Act providing for the constitution of a Tribunal was upheld as also the provision of sub-section (4) of Section 8 was upheld on the ground that the management has the right to order immediate suspension of an employee in case of gross misconduct and it was observed that the Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension. It would, thus, be seen that the touch-tone on which sub-section (4) of Section 8 was tested was taking into consideration the provisions of Article 30(1) of the Constitution relating to the special protection for minority institutions. Not only this, Section 12 of the said Act making Chapter IV inapplicable to unaided minority institutions was held to be discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions.
22.In Mrs. Y. Theclamma”s case (supra), again a Bench of two Judges of the Supreme Court, upheld the provisions of sub-section (4) of Section 8 by reference to the decisions of Frank Anthony Public School Employees” Association”s case (supra).
23.The submission of learned senior counsel for the petitioners in this behalf was that these two judgments could not be said to hold fort and stood impliedly over-ruled by the judgment in T.M.A. Pai Foundation”s case (supra). It may be noticed that there is a reference in para 124 of T.M.A. Pai Foundation”s case (supra) by noticing that the regulation providing for prior approval for dismissal was held to be invalid, but prior approval before suspension was held to be valid in Frank Anthony Public School Employees” Association”s case (supra). There has been no detailed discussion on this aspect since the Constitution Bench in T.M.A. Pai Foundation”s case (supra) was not concerned with the challenge to any specific provisions of any enactment including the said Act.
24.There have been various fall-outs of the judgment in T.M.A. Pai Foundation”s case (supra) and specific aspects have been considered subsequently. In Islamic Academy of Education & Anr. v. State of Karnataka & Ors., (2003) 6 SCC 697, the issue of enforcement of statutes in respect of self-financing private institutions, minority or otherwise, came into question. However, only two aspects arising from T.M.A. Pai Foundation”s case (supra) formed the subject matter of clarification / adjudication ” (i) fixation of percentage of seats that would be filled in by unaided professional colleges; and (ii) charging / fixation of fees. We are, however, informed by learned counsel for the parties that subsequently the issues arising from this matter has been referred to a larger Bench and is awaiting judgment after conclusion of hearing.
25.Learned senior counsel for the petitioners laid great stress on the observations made in Brahmo Samaj Education Society”s case (supra) to contend that the State Government ought to have made suitable amendments in the said Act as well as in the said Rules and ought to have deleted the impugned provisions. This was so required to be done in view of the judgment in T.M.A. Pai Foundation”s case (supra).
26.Learned counsel for both the parties have invited attention of this Court to majority judgment of the Bench of three Judges of the Supreme Court in Modern School v. Union of India & Ors., (2004) 5 SCC 583. However, the question was one relating to the fee structure and prohibition of commercialization of education and the issue of employer-employee relationship did not come to be discussed.
27.It may be noticed that in Writ Petition (Civil) No.3883/2005, a further challenge has also been laid to Section 24 of the said Act and proviso to Rule 50, 51 and 56 of the said Rules. Section 24 deals with the inspection of schools, while Rules 50 and 51 deal with the conditions for recognition and facilities to be provided by a school seeking recognition, while Rule 56 deals with suspension or withdrawal of recognition. This writ petition was also connected with the other two writ petitions before this Court in view of general challenge to the provisions of the said Rules. The impugned decision of the Directorate of Education deals with the issue arising from inspection as well as the issue of termination of the services of the Principal, which gave rise to W.P. (C) No. 16260-61/2004.
28.Learned counsel appearing for the Govt. of NCT of Delhi, however, sought to contend that the provisions are for the benefit of the teachers and it is not that every nature of punishment is requiring prior approval. It is only in cases of what are really major penalties that action taken by the school management requires the prior approval of the Directorate of Education. In so far as the issue of suspension is concerned, it was submitted that the object is to avoid keeping the persons under suspension for long periods of time. It was submitted that the observations made in T.M.A. Pai Foundation”s case (supra) are by way of passing reference and would be per incuriam as the matter was not in issue. It was submitted that the observations relied upon have to be read with the other observations made in the said paragraphs, which do provide for authority both in matters of recognition and management of the institutions. Learned counsel laid great stress on the fact that the Apex Court itself had the opportunity to consider the validity of certain provisions in Frank Anthony Public School Employees” Association”s case (supra) and in view thereof no challenge could be laid before this Court. Not only this, though the said judgment has been referred to in T.M.A. Pai Foundation”s case (supra), it has not been specifically over-ruled.
29.In so far as challenge to the provisions regarding the requirements to be fulfillled and continuing to be fulfillled for recognition are concerned, it is submitted that there can be no doubt that the observations in T.M.A. Pai Foundation”s case (supra) would not come to aid of the management.
30.Learned counsel for the aggrieved teacher in Writ Petition (Civil) No. 3935/2004 more or less adopted the same line of argument. A reference was made to the judgment in Supreme Court Bar Association v. Union of India & Anr., (1998) 4 SCC 409 to contend that the Court while exercising powers under Article 142 of the Constitution cannot ignore any substantive statutory provision dealing with the subject matter. It was further submitted that the regulations as are necessary for prevention of mal administration by the management in-charge have, in fact, been upheld by the Supreme Court even as per the observations in para 54 of T.M.A. Pai Foundation”s case (supra) and the rules are in the nature of regulatory mechanism. It may be noticed that the aggrieved employee has already filed an appeal before the Tribunal, but the larger issue has arisen in view of the fact that it has a direct ramification on the availability of some of the pleas to be advanced by the aggrieved teacher.
31.In so far as the aggrieved Principal in respect of Geeta Bal Bharti Senior Secondary School is concerned, he appeared in person and sought to advance submissions. The submissions were on the same lines as aforesaid. It has been contended that these are reasonable restrictions, which have been put in the form of statutory provisions in view of Article 19(6) of the Constitution and it was contended that sentences cannot be picked up from the judgments in piecemeal fashion to advance the proposition.
32. It is in the conspectus of the aforesaid submissions that we have to consider the legal proposition and the specific issues arising from the facts of the case would be considered thereafter.
33.In our considered view, the judgment in T.M.A. Pai Foundation”s case (supra) clearly and unambiguously sets out the legal position in so far 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 Constitution 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 a 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 such rules. The conclusions have been set forth in paras 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 enquiry. The question, however, remains as to who would judge as to whether the enquiry 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 services. 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 judicial forum and it is not the State Authorities which have to act as an 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.
36.It has also to be kept in mind that while dealing with the issue of education, it has been held that it is the touch-tone of Article 19(1)(g) read with Article 19(6) of the Constitution on which this matter has been examined by the Apex Court. Thus, any law to the contrary would violate not only the pronouncement of law by the Supreme Court, but would be violative of the Constitution on this touch-tone of Article 19(1)(g).
37.The aforesaid aspect has been further re-emphasised in the case of Brahmo Samaj Education Society”s case (supra) in para 10 of the judgment. The Supreme Court has held that there should be no dilution of law as laid down in T.M.A. Pai Foundation”s case (supra) and the State Government ought to take note of the declaration of law to make suitable amendments in the laws, rules and regulations to bring them in conformity with the principles set out therein. The State Government has failed in its duty to bring the said Act and the said Rules in conformity with the law pronounced in T.M.A. Pai Foundation”s case (supra).
38.There can be no doubt in view of the aforesaid that in so far as the unaided schools are concerned, the requirement of compliance of prior approval of the Director under Sub-section (2) of Section 8 before the disciplinary action is taken or under sub-section (4) of Section 8 in so far 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.
39.The Rules challenged in this behalf more specifically sub-rules (2) and (5) of Rule 115 could also not be said to apply to such institutions as also the provisions of Rule 120(1)(d)(iii) & (iv) and 120(2) of the said Rules. These are all rules dealing with the requirement of pre or post approval by the Director of Education. Rules 118(iii) and 118(iv) relate to the constitution of a disciplinary authority. Sub-rule (iii) of Rule 118 provides for a nominee of the Director in case of an unaided school to be on the disciplinary authority, while sub-rule (iv) of Rule 118 provides for Head of the school as one of the Members but in case the proceeding is against the Head of school, the Head of any other school nominated by the Director. There is no doubt that in para 53 of T.M.A. Pai Foundation”s case (supra), it has been observed that the private institution will have the right to constitute its own Governing Body for which qualification may be prescribed. It would, however, be objectionable if the State retains the power to nominate specific individuals on the Governing Body. In the present case, we are not concerned with the nomination on the Governing Body, but the grievance is being made in respect of constitution of the disciplinary authority. It has been observed in T.M.A. Pai Foundation”s case (supra) that there has to be freedom for disciplinary action. It cannot, thus, be said that a disciplinary authority cannot proceed till such time as the Director nominates its representative. Further, in case of an action against the Head of school, the Director has a further right to nominate the Head of any other school making the nomination of two Members out of five-Members Committee. It may be noticed that on the Managing Committee as it is there are representatives of the Director of Education. The object of Rule 118 of the said Rules seems to broad-base the disciplinary authority. We see nothing wrong or unconstitutional with this provision in as much as it facilitates an impartial enquiry. However, it is clarified that in case of inordinate delay and failure of the Directorate of Education to nominate the Member of disciplinary authority, the whole matter is not required to be kept in abeyance and the disciplinary authority should be able to proceed with the matter in issue. We may observe that a period of two weeks from the date of intimation should be sufficient time for the Directorate of Education to nominate its Member. Not only this, the ultimate power really vests with the Managing Committee and, thus, the constitution of disciplinary authority does not in any manner take away the powers of the Managing Committee to take necessary action in matters of discipline relating to teachers and employees. Thus, the provision though not unconstitutional or in conflict with T.M.A. Pai Foundation”s case (supra) has to be read in the manner provided aforesaid.
40.It has been noticed above that there are challenges to certain other provisions of the said Act and the said Rules more specifically Section 24 read with Rules 50, 51 and 56. The management must have the right to administer, but the authority granting recognition and affiliation can prescribe the condition for academic and educational matters as also the welfare of students and teachers. In our view, this is what Section 24 and the said Rules concerned do. We are unable to accept the plea of learned counsel for the petitioners in Writ Petition (Civil) No. 3883/2005 that Section 24 requires to be re-framed or that the Rules are required to be re-framed. This Court, in fact, cannot direct the legislature to re-frame an enactment, but can only strike down enactments, which are found unconstitutional. A reading of the Rules shows that they prescribe the condition of recognition as well as the facilities to be provided by the school. These are matters relating to the quality of education and the standards to be maintained. In fact, learned senior counsel for the petitioners really could not press this issue beyond a point as they were unable to point out as to what the infirmity in the said Section or the Rules was.
41.Before parting with the general proposition, we must note an apprehension, which arises from the constitution of the Tribunal under Section 11 of the said Act. The Tribunal is only limited to hear the grievances in respect of three major penalties. The apprehension, thus, expressed is that if the power of approval, prior or ex-post facto, as contained in sub-section (4) of Section 8 is held as not applicable to the unaided schools, it may be possible to keep a teacher in suspension for long period of time without proper disciplinary proceedings, which is not desirable. In our considered view, there can be no quarrel about the proposition that a speedy and expeditious disposal of disciplinary proceedings is a sine qua non for fair play. This aspect can, however, be taken care of. The Supreme Court in Shashi Gaur v. NCT of Delhi & Ors., (2001) 10 SCC 445 has already held in respect of jurisdiction of the Tribunal that Section 8(3) of the said Act provides for an appeal not only against the order of dismissal, removal or reduction in rank, but also against termination, otherwise except, where the service itself comes to an end by efflux of time for which employee was appointed. This interpretation is based on the fact that the provisions of sub-section (2) of Section 8 provided 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.
42.The Supreme Court had, in fact, directed in T.M.A. Pai Foundation”s case (supra) for constitution of a specialised Tribunal in respect of any grievance of the teacher. Till such Tribunal is constituted, power was given to the District Judge to deal with such matters or an Additional District Judge as notified by the Government. No restriction has been placed on the scope and ambit of the consideration of the grievances of the teacher or employee by the Tribunal. Under the said Act in question, the Tribunal is already constituted. Thus, all that is to be done is that the Tribunal should be able to hear all grievances including in respect of suspension by a teacher or an employee. Taking into consideration the observations made by the Apex Court in T.M.A. Pai Foundation”s case (supra), we are of the considered view that pending necessary legislative action by the State, the Tribunal constituted should be able to hear all grievances of the staff and teacher and not necessarily as restricted to in sub-section (2) of Section 8 of the said Act. The result would be that if a teacher is aggrieved by a suspension order or its prolongation, the grievance can be made before the Tribunal depending upon the facts and circumstances of the case.
43.We may further add at this stage that it is advisable that the specialised Tribunal so constituted should be looking after only the legal matters relating to hearing of grievances of teachers and employees. There is a fair amount of litigation on this aspect and, thus, it is not that a judicial Officer performing other functions should in addition be performing the role of the Tribunal. The State Government is, thus, directed to take necessary steps in this behalf to ensure that the Officer dealing with matters relating to the Tribunal should be exclusively dealing with such matters and the needful be done within a period of one month from today in consultation with the High Court as mandated in para 64 of the judgment in T.M.A. Pai Foundation”s case (supra).
44.The result of the aforesaid is that the provisions of Sections 8(2) and 8(4) of the said Act, Rules 115(2) & (5) and 120(1)(d)(iii) & (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 from 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.
45.Now, coming to certain facts peculiar to respective cases necessary for directions to be issued in those matters.
46.Writ Petition (C) No. 3935/2005 arose out of the grievance made by Kathuria Public School seeking quashing of certain orders whereby approval was not granted for disciplinary action. The first order is dated 30.09.2003 whereby an order was served on the ground that the teacher concerned had been suspended by passing a resolution in the Managing Committee of the school in the absence of the Department’s nominee on the Managing Committee and approval of the competent authority for suspension had not been sought. On these accounts, in terms of the Order, the request of the Managing Committee for disciplinary proceedings had been declined on the ground that it was without observing proper norms. The petitioner responded to the same vide letter dated 27.10.2003 explaining the position about the unaided private school as also to the fact that the intimation of holding of the Managing Committee meeting was sent to all the concerned persons and, thus, it was for the representative of the Department to attend or not to attend the meeting. The subsequent order is dated 03.12.2003 directing that the dismissal or the termination of services of the teacher was not permissible in view of not following of the norms.
47.In view of the dismissal of teacher, the aggrieved teacher has already filed an appeal before the Tribunal. However, the two aforesaid impugned orders cannot be sustained as basis for the same is that the requirement of concurrence. In view of the conclusion arrived at above on the principle of law, there would be no role for the Directorate of Education in this behalf and, thus, the two impugned orders are quashed leaving it for the Tribunal to determine the appeal of the teacher on merits but, of course, subject to what has been stated aforesaid on the issue of requirements for concurrence of the Department not being required.
48.The other writ petition is filed by Geeta Bal Bharti Senior Secondary School being Writ Petition (Civil) No.16260-61/2004. The relief sought for in this petition, apart from the challenge to provisions of the said Act and the said Rules, is the declaration by the respondent authority against the termination of services of the Principal and for his reinstatement. In view of the interpretation of the provisions as above, these orders communicated vide letters dated 29.06.2004 and 04.08.2004 cannot be sustained. One of the reasons for such decision is the time-frame stipulated within which the enquiry was not completed. The impugned orders are quashed, but in so far as the merits of the dismissal order are concerned, it is open to the aggrieved teacher / Principal to seek redressal before the Tribunal other than on the issue of requirement of any prior or ex-post facto consent by the State Government for the disciplinary proceedings. The observations on the effect of Rule 118 would also be taken into consideration by the Tribunal while considering such an appeal.
49.The last Writ Petition (Civil) No. 3883/2005 is also by the Management of Geeta Bal Bharti Senior Secondary School. The challenge laid was to certain provisions of the said Act and the said Rules, which have been dealt with here-in-before and fails. However, the grievances in respect of the impugned order dated 11.01.2005 survives. The impugned order, apart from dealing with the issues of disciplinary action against the Principal have also referred to certain other aspects and failure of the petitioner to fulfilll the requirements. We have dealt with only the issue of the prior approval or ex-post facto approval for disciplinary proceedings. In so far as other issues in respect of recognition are concerned, we consider it appropriate to direct the matter to be placed before learned Single Judge to consider the grievances of the petitioner in respect of other aspects since the matter had been placed before the Division Bench only by reason of the challenge to vires of the said Rules and no submissions have been made by parties on any other behalf.
50.In view of the aforesaid, following the dictum of the Supreme Court in T.M.A. Pai Foundation”s case (supra), the provisions dealing with prior approval and post-facto approval in respect of disciplinary matters of teachers and employees are held not to be applicable to unaided non-minority educational institutions with the remedy being provided to agitate the grievances before the Tribunal constituted under the said Act.
51.The writ petitions being WP (C) Nos. 3935 and 16260-61/2004 are disposed of in the aforesaid terms leaving the parties to bear their own costs.
52.W.P. (C) No. 3883/2005 be listed before learned Single Judge on 05.08.2005 for further proceedings.