1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: (1) Central Academy Society Vs. Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Ors. D.B.Civil Special Appeal (Writ) No. 344/2001 (2) Central Academy Society Vs. Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Ors. D.B.Civil Special Appeal (Writ) No. 345/2001 (3) Central Academy Society Vs. Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Ors. D.B.Civil Special Appeal (Writ) No. 346/2001 DATE OF ORDER :::: 31st May 2010. PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI HON’BLE DR.JUSTICE VINEET KOTHARI HON’BLE MR.JUSTICE SANGEET LODHA Dr. P.S. Bhati with Mr. Nikhil Dungawat, for the appellants. Mr. Hemant Dutt, for the respondents. Mr. D.P. Sharma, intervener. .... Reportable BY THE COURT: (Per Dinesh Maheshwari, J.) INTRODUCTORY These three intra-court appeals have been placed before this Bench by the orders of Hon’ble the Chief Justice for a reference having been made by a Division Bench of this Court on the question of applicability of Section 18 of the Rajasthan Non- Government Educational Institutions Act, 1989 [hereinafter referred to as ‘the Act/‘the Act of 1989’] in the case of removal or termination of services of the employee of an unaided recognised educational institution. The Hon’ble Division Bench hearing these appeals was 2 of the view that there had been conflict of opinions in different Division Bench decisions on the question aforesaid and observed in its reference order dated 14.01.2008 as under:- “Heard learned counsel for the parties. Learned counsel for the appellants has relied upon a Division Bench judgment of this Court in Educational Society of Sophia High School & Ors. Vs. Raj. Non-Govt. Educational Ins. Tri. & Ors., reported in 2003 WLC (Raj.) UC Page 638. On the other hand, learned counsel for the private respondents relied upon another Division Bench judgment of this Court in Managing Committee Through Chairman (Brig.) Dy. G.O.C. Army School & Anr. Vs. Smt. Pushpa Sharma & 4 Ors., reported in 2006 (3) WLC (Raj.) Page 504 and Saint Meera Brotherhood Society Vs. State of Rajasthan & Others, reported in 2006 (1) WLC (Raj.) Page 677. In our view, from the reading of the three judgments, there appears to be apparent conflict of opinion between the different Division Benches on the question about applicability of Section 18 in the matter of removal and termination of services of recognized but un-aided educational institutions. In our view, the matters are required to be and are referred to Hon'ble the Chief Justice for constitution of appropriate Larger Bench, to decide the question as to whether requirement of Section 18 is attracted even in case of un-aided recognized educational institutions.” THE RELEVANT PROVISIONS In view of the questions calling for determination in this reference, appropriate it shall be to take note, at the outset, of Section 18 and the other relevant provisions as contained in the Act of 1989. Section 18 reads as under:- 18. Removal, dismissal or reduction in rank of employees - Subject to any rules that may be made in this behalf, no employee of a recognized institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken : Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained : Provided further that this section shall not apply,- (i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or 3 (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or (iii) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing. (emphasis supplied) The relevant definitions as contained in Section 2 of the Act of 1989 read as under:- (a) “aid” means any aid granted to a recognised educational institution by the State Government; (b) “aided institution” means a recognised institution which is receiving aid in the form of maintenance grant from the State Government; (c) “Board” means the Board of Secondary Education, Rajasthan or the Central Board of Secondary Education, Delhi and shall include the Council for the Indian School Certificate Examinations; (p) “non-Government educational institution” means any college, school, training institute or any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate, degree, diploma or any academic distinction recognized by the State or Central Government or functioning for the educational, cultural or physical development of the people in the State and which is neither owned nor managed by the State or Central Government or by any University or local authority or other authority owned or controlled by the State or Central Government; (q) “recognised institution” means a non-Government educational institution affiliated to any University or recognised by the Board, Director of Education or any officer authorised by the State Government or the Director of Education in this behalf; Section 3 of the Act of 1989 deals with recognition of institutions and provides as under:- 3. Recognition of institutions. (1) Except in the case of institution affiliated to a University or recognised or to be recognised by the Board, the Competent Authority may, on an application made to it in the prescribed form and manner, 4 recognise a non-Government educational institution on fulfillment of such terms and conditions as may be prescribed : Section 19 provides for an appeal to the Tribunal constituted under Section 22 of Act in the following terms:- “19. Appeal to the Tribunal – (1) If a managing committee is aggrieved from the order of refusal made by the Director of Education under section 18, it may prefer an appeal to the Tribunal constituted under section 22 within ninety days of the date of receipt of such order. (2) An employee aggrieved from an order of the managing committee made under section 18, may prefer an appeal to the said Tribunal within ninety days of the date of receipt of such order. Section 40 gives the provisions of the Act overriding effect over anything inconsistent in any instrument having effect by virtue of any law; and reads as under:- 40. Overriding effect of the Act – The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any instrument having effect by virtue of any law. THE BACKGROUND FACTS Before adverting to the questions calling for determination in this reference, appropriate it shall be to have a glimpse of the background facts relating to these appeals. These three intra-court appeals by the appellant Central Academy Society are directed against the orders dated 07.03.2001 whereby the learned Single Judge of this Court has dismissed the writ petitions filed by the petitioner-Society in challenge to the common order dated 11.10.1999 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur [hereinafter referred to as ‘the Tribunal’] in the appeals preferred by the private respondents-employees against the order dated 22.02.1997 whereby their services were sought to be terminated in the purported exercise of powers under clause (iii) of second proviso to Section 18 of the Act. The Tribunal 5 held that the provisions contained in Section 18 of the Act and so also Rule 39 of the Rules framed thereunder were mandatory in nature and the same having not been complied with, the orders of termination were bad in law. In challenge to the order so passed by the Tribunal, it was urged by the employer Society in the writ petitions that the order of termination having been passed by unanimous decision of the Committee, it must be deemed to be an order of termination simplicitor within the meaning of clause (iii) of the proviso to Section 18 of the Act of 1989 and not by way of punishment; and therefore, the principles of natural justice were not required to be adhered to and no opportunity of hearing was required to be given before taking action under the said clause. A Circular issued by the Government on 09.07.1998 was also relied upon under which, it was envisaged that if the District Education Officer would not communicate in writing within 30 days his disapproval of the proposed termination of services of any employee, the approval may be deemed to have been accorded; and it was submitted that on the expiry of 30 days from the date of sending the decision to the Director, it must be deemed to have received the required approval. In the impugned orders dated 07.03.2001, the learned Single Judge of this Court referred to the requirements of the aforesaid clause (iii) of the second proviso to Section 18 of the Act; and rejected the contention based on the alleged Circular of the Government for it being not in conformity with the statutory provisions. The learned Single Judge said,- “Neither any such contention has been raised nor any such suggestion has been made in Ex. 2, the Circular, issued by the State Govt. in that regard that any amendment in Sec. 18 has been made. The proviso (iii) leaves no room of 6 doubt. Under the Act, for operation of proviso (iii) to Sec. 18, the conditions requisite are; first is that the managing committee is of unanimous opinion, second is that such opinion must relate to the fact that the employee cannot be continued without prejudice to the interest of the institution, third is that before such unanimous decision, can be given effect to, there must be fulfilled two pre-conditions: firstly that before the services are terminated either six months notice is to be served on the concerned employee or salary in lieu there of is paid; and secondly for such termination consent of the Director of Education is obtained in writing. No rule much less executive order can dispense with the requirement of the consent by director in writing by issuing instructions to envisage that non receipt of the decision by the Director in negative within 30 days of making of application would tantamount to be deemed consent of the Director to the proposed action of termination thus doing away with the statutory requirement of such consent to be in writing. The parent provision requires that before such order became effective such consent of the authority, who has been designated the function of according or withholding such consent, must speak for itself through an order in writing. A silence to speak cannot be equated with requirement of an order in writing. It is not within the domain of the delegated authority or executive authority of the State to deviate from that and make rule of its own in derogation of parent statute. Thus, even on admitted facts in absence of any written consent by the Director the order cannot come to life at all. In the present case, even the delegated authority namely the District Education Officer has not given his consent in writing. In view of this undisputed circumstance, termination order which even if fulfils all other conditions cannot be said to have ever come in operation and become effective.” The learned Single Judge thereafter referred to the requirement of ‘unanimous opinion’ of the Managing Committee and observed that this requirement could not be delegated to any smaller body for reaching to the conclusion as to whether continuance of employee was not possible without prejudice to the interest of the institution. The learned Single Judge observed further, with reference to the contents of the impugned termination order, that such had not been the opinion framed by the Committee concerned but was the opinion held only by the Secretary of the Committee. The learned Judge held that the order of termination could not be considered on its own to be a unanimous decision by the Managing Committee; and further that the impugned order was punitive in nature and not an order of termination simplicitor. That 7 being so, learned Single Judge said, unless the decision-making authority had given an opportunity of hearing to the delinquent, no punishment of dismissal could have been imposed. The learned Single Judge also referred to the antecedents where services of the incumbents were sought to be terminated earlier and such an action was not approved and rather, the Society was directed to hold an enquiry; and held that the impugned propositions as adopted by the Society were wholly arbitrary and unfair, being calculated at nullifying the effect of binding orders. Aggrieved by the orders so passed by the learned Single Judge in dismissing the respective writ petitions, the appellant- Society has preferred these intra-court appeals. During the course of hearing of these appeals, the appellant-Society relied upon a Division Bench decision in the case of Educational Society of Sophia High School & Ors. Vs. Raj. Non-Govt. Educational Ins. Tri. & Ors.: 2003 WLC (Raj.) UC 638 to argue that the provisions of Section 18 ibid would not apply for itself being an unaided institution. On the other hand, the respondents relied upon the Division Bench decisions in (i) Saint Meera Brotherhood Society Vs. State of Rajasthan & Ors.: 2006 (1) WLC (Raj.) 677 and (ii) the Managing Committee through Chairman (Brid.) Dy. G.O.C., Army School & Anr. Vs. Smt. Pushpa Sharma & 4 Ors.: 2006 (3) WLC (Raj.) 504 to submit that the provisions of Section 18 are mandatory in nature and applicable to the appellant-Society as well. As noticed, this reference came to be made when the Division Bench hearing these appeals found the views expressed in the aforesaid Division Bench decisions on the question about applicability of Section 18 of the Act in relation to an employee of an unaided recognised institution not in uniformity; and standing rather 8 in conflict. Hence, appropriate it shall now be to have a close look at the decisions said to be expressing different views. THE CASE OF SOPHIA SCHOOL The appellant had relied upon the decision of the Hon’ble Division Bench of this Court in the case of Educational Society of Sophia High School & Ors. Vs. Raj. Non-Govt. Educational Ins. Tri. & Ors.: 2003 WLC (Raj.) UC 638 [D.B. Civil Writ Petition No. 601/2002 – Decided on 07.04.2003] to submit that the requirements of Section 18 shall not apply in the case of an unaided recognised institution. In Sophia School’s case, the respondent No.2 was serving as a teacher with the petitioner, a recognised private educational institution not receiving any aid from the Government; and her services were terminated by the order dated 19.02.2000 as a result of the proved misconduct in a departmental enquiry conducted by the petitioner. The respondent No.2 challenged the termination order before the Tribunal, inter alia, on the ground that before effecting such termination, prior approval of the Director Education was not obtained as required by the proviso to Section 18 ibid. Such a contention found favour with the Tribunal and solely on the ground that the petitioner had not obtained prior approval of the Director of Education or any Officer authorised by him in this behalf, the termination order was held to be void ab initio and was set aside. In the writ petition preferred by the Institution, the Division Bench of this Court in its order dated 07.04.2003 found the question no more res integra while observing that in the case of T.M.A. Pai Foundation & Ors. Vs. State of Karnataka and Ors. (2002) 8 SCC 481 [hereinafter referred to as 'Pai Foundation' case], the Hon’ble Supreme Court had made it clear that in a recognised 9 private education institution not receiving any aid from the State, there has to be least interference by the State. The Division Bench was of opinion that in view of the law declared by the Hon’ble Supreme Court, the requirement in Section 18 ibid, of seeking prior approval of the Director, has to be read confined to the aided institutions only and not applicable to the unaided institution private institutions. The Division Bench said,- “6. The aforesaid question is now no more resintegra. In T.M.A. PAI Foundation & Ors. Vs. State of Karnataka and Ors. (2002) 8 SCC 481, the Supreme Court has made it clear that any recognised private education institution which is not receiving any aid from the State, there has to be least interference by the State in the managerial functions of such institution. Making specific reference to the requirement of obtaining prior approval before terminating services of an employee of an educational institution which is not receiving any aid from the state in the context of disciplinary action taken by any such institution, it was stated by the Court: “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.” 7. The Court found that in the case of private institution, the relationship between the management and the employees is contractual in nature. The Court also found that ordinarily requiring a teacher or a member of the Staff to go to Civil Court for the purpose of seeking redress. 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 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. The Court also said that 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. The Court further declared: “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.” 8. In view of the aforesaid, the Proviso to Section 18 has to be read in the light of aforesaid pronouncement of law and in a manner that it does not fall foul with the law 10 declared by the apex court on the subject in the light of constitutional provisions. Requirement to seek approval of the Director Education before taking disciplinary action against the teacher or its employee by any recognised institution has to be read in the light of the Supreme Court's decision in T.M.A. Pai Foundation Vs. State of Karnataka's case and the proviso has to be confined to the private recognised educational institutions which are receiving aid from the State Government to sustain its constitutional validity. Such requirement of prior approval of Director Education before final disciplinary action is taken by way of removal, dismissal or reduction in rank of any employee amounts to interference in managerial function and such power cannot extend to such recognised private Educational Institution which do not receive any aid from the State. We accordingly do so.” (emphasis supplied) For the conclusions aforesaid, and after finding that in the State of Rajasthan, an Educational Tribunal had already been established and the appeal had been preferred before the said Tribunal, the Division Bench held that there was no impediment for the respondent No.2 in seeking remedy before the Tribunal against her dismissal order. The Division Bench, accordingly, allowed the writ petition, set aside the order passed by the Tribunal and directed the Tribunal to decide the appeal of respondent No.2 afresh in accordance with law while ignoring the issue about the absence of prior approval before making an order of dismissal/removal. THE CASES OF SAINT MEERA BROTHERHOOD SOCIETY AND ARMY SCHOOL In counter to the submissions made by the appellants, the respondent employees had relied upon two Division Bench decisions purportedly taking a view different than that expressed in Sophia School (supra); the one being the case of Saint Meera Brotherhood Society Vs. State of Rajasthan & Ors.: 2006 (1) WLC (Raj.) 677 [D.B. Civil Special Appeal (Writ) No. 69/2001 – Decided on 16.12.2005]. In this case, the services of the respondent No.5, 11 who was appointed as Teacher Gr.III with effect from 01.07.1981 on ad hoc basis by the appellant Society, were terminated by the order dated 15.05.1993 because of abolition of posts but without the prior approval of the Director, Education Department. The respondent No. 5 assailed the order of termination by filing an appeal before the Tribunal; and the Tribunal proceeded to allow the appeal by its order dated 13.05.1994 essentially on the ground that the Society had not complied with the mandatory provisions of Section 18 of the Act of 1989; and quashed the order of termination. The order passed by Tribunal was challenged by the Society by filing the writ petition, which was dismissed by the learned Single Judge with a short order that the impugned order, being a well-reasoned one, required no interference; and the Tribunal had rightly reached to the conclusion that there was non- compliance of the mandatory requirement of Section 18 ibid. The order so passed in the writ petition was challenged in intra-court appeal on the grounds that the learned Single Judge dismissed the petition with a practically non-speaking order; and that because of abolition of posts, there was no necessity of prior approval of the authority. The Hon’ble Division Bench rejected the contention that the order passed by the learned Single Judge was a non-speaking one and further rejected the contention that because of abolition of posts, the approval by the authority was not required while observing that the provisions contained in Section 18 of the Act were mandatory in nature. The Division Bench said,- “7. A look at section 18 of the 1989 Act and the Rules made thereunder provide that no employee of the recognised Institution shall be removed, dismissed or reduced in rank unless he has been given a reasonable opportunity of being heard against the action proposed to be taken. As per proviso (iii), Section 18 shall not apply where the managing committee is of unanimous opinion that the service of an employee cannot be continued without 12 prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing. 8. Since the proviso (iii) of Section 18 of 1989 Act has not been followed in letter and spirit by the Institution in terminating the services of the employee, we do not find any infirmity in the impugned order of learned Single Judge. The Tribunal has proceeded within its parameters….. … … … 9. We find ourselves unable to accept the arguments of learned counsel for the appellant that because of abolition of posts the provisions contained in Section 18 of 1989 Act were not applicable. We are of the view that the provisions contained in Section 18 of 1989 Act are mandatory and it was incumbent on the appellant society to follow the same.” (emphasis supplied) The other decision relied upon by the respondents had been in the Managing Committee through Chairman (Brid.) Dy. G.O.C., Army School & Anr. Vs. Smt. Pushpa Sharma & 4 Ors.: 2006 (3) WLC (Raj.) 504 [D.B. Civil Appeal (W) No. 62/2001 with connected cases –