PRINCIPAL AND ORS.

PRESIDING OFFICER AND ORS.

January 9, 1978

[S. MURTAZA FAZAL ALI AND JASWANT SINGH, JJ.] B

Delhi School Education Act, 1973-S.8(2) & (3)-Scopc of.

Respondent No. 2 who is Ml M.Com., but <loes not poos.e5s a !rainTiig Degree or a rc..cognised Diploma in Education or three ya!s' expenence ot teaching intermediate or higher classes or a recognised tra1n1ng cert1ficate, as required by clause 18 of Chapter 4 of the Central Board of Secondary Education Hand Book, for teaching the subject of commerce to 9th a.nd _ l 0th classes, C was appointed as Commerce teacher on probation for two years in the N. C.

Jindal Public School, New Delhi with further condition that his services were liable to be terminated with one month's notice on either side or a month's salary in lieu of notice without assigning any reason durin!? the prbattn period, Mld thret: months' thereafter.

Pursuant to the warnmg contained 1n the letters dated November 2, 1972, December 24, 1973 &nd August 4, 1975 of the Central Board of Secondary Education, New Delhi to v1hich the school is 'affiliated' since 1971, Respondent No. 2 who did not possess the minimum qualifications prescribed by the Board was served with three months' notice on D August 8, 1975 informing him that his services would not be required by the School w.e.f. November 8, 1975.

On September 8, 1975 the management, vidc its another notice to Respondent No. 2 enclosing therewith a cheque for Rs. 1300/· by \vay of his sala.ry for two months from 8·9·1975 to 7·11·75 in lieu of the re1naining period of two months, relieved him of his duties with effect fri.; m the afternoon of that date.

Aggrieved by these notices, Respon dent No. 2 filed u/s 8(3) of the Delhi School Education Act 1973, an appeal (No. 22/75) before the Delhi School Tribunal Delhi as-.erting. inter alia, that E after the expiry of the probationary period of two years, he WaG confirmed by the school authorities in the post of commerce teacher in July 1974, that despite sincere and hard work put in by him his services were terminated on the

bis . of false and baseless charges because of prsonal malice which the pnnc1pal of the school bore towards him; that the_ plea that he was not aca

demically qualified was incorrect, that the management which was fully cogn1 zant of the requirements of the rules, having issued the letter oi appointment and subsequently that of confirmation was estopped front pleading that he was not qualified to tea.ch the higher classes, that after completion of three years F of teaching experience in the school the disqualificaiion, if any having_ disappeared the said clause could not be made a ground for terminating hts services, and thal his services could not be terminated without the prior approval of the Director of Education a.s providd by sub section (2) of Section 8 of the Act and without following the provisions of the Acr and the rules m:lde thereunder.

The appellants contested the appeal contending inter a!ia, that since the school was neither an aided one nor had been recogflised by the appropriate a•uthority, the Act and the rules framed thereurtder"" were net app11cable to it, and consequently the appeal was iricompetent and the G Tribnn.al ad no jurisdiction !'O entertain the same; that the appeal was even otherwise incompetent as the impugned order was an order simpliciter of ter-

'?ination of his services .not satifying the conditions necessary for the applicil_ t1on o~ s.8 (3) and that. 1n the c1rcusta1;1-ces of the case the prior approval of the Dlfector of Education for term1nattng the :; ervices \Va'-> not at all necessary.

The Ma.nagement denied the other allegations made by respotfdtnt No. 2.

The Tribunal allowed the appeal.

Allowing the appeal by special leave the Court,

. HELD:!. From sub-clauses (e) and (t) of s. 2 of the Delhi Schools Educat, on Act, 1973, which define a "recognised school" and ari "appropriate authority"

7 -114 6SCI/77

A respectively, it is clear that no school can be treated as a "recognised school" unless it is recognised or acknowledged by the "appropriate authority". The name of the school find ; ng a place in the list of Higher 5econda1y and middle sChools prepared by the Directorate of Education, its affiliation to the Board or even its existence at the commencement of the Act can not clothe it with the status of a recognisd. school.

In the instant case, the school \Vas not a "recognised private school" on the relevant date and. was therefore not amenable to the proVIsions of this Act. It was not an 'existing school" within the meaning of B S.2(j) of the Act. f510 H. 511 A, E-G]

2. Prior approval of the Director of Education is required u/s 8(2) only if the servicl.! of an employee of a recognised private scho0l is to be terminated.

As in the instant case, the school wa-s not a recognised private school, the approval of the Director of Education was not at all necessary to mhke the order of termination of service of respondent No. 2 valid and legal.

[512 A-Bl

3. For the applicability of S.8(3) of the Act, two conditiorn must co-exist viz. (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 of dismissal removal or reduction in rank. Jn the instant case, as the school was neither a recognised private school on the relevant date nor was the impugned -Order one of dismissal, removal or reduction in rank but was an order simpli~

citer of' termination of service, the appeal filed before the Tribunal constituted u/s ll of the Act was manifestly incompetent and the order passed thereon by D the rribunal was clearly without jurisdiction.

[512 C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1804 °of 1977.

Appeal by Special Leave from the Judgment and Order dated the 18th January, 1977 of the Delhi School Tribunal, Delhi in Appeal No. 22 of 1975. ·

G. D. Gupta, Uma Datta and A. K. Kalra for the Appellants.

Swatantar Kumar and Arvind Minocha for Respondent No. 2

The Judgment of the Court was delivered by

.,, JASWANT SINGH, J. This appeal by special leave is directed against an order dated January 18, 1977 passed by the Delhi School Tribunru, Delhi (hereinafter referred to as 'the Tribnnal') in Appeal No. 22 of 1975 purporting to have been preferred nnder snb-section(3) of sec- / tion 8 of the Delhi School Education Act, 1973 (hereinafter referred to as 'the Act') by Kunj Behari Lal, respondent No. 2 herein.

G It appears that respondent No. 2 who is an M. Com. but does not possess a Trruning Degree or a recognised Diploma in Education oc three years' experience of teaching intermediate or higher classes oc a recognised training certificate was appointed as Commerce Teacher on two years probation in the pay scale of Rs. 418-10-438-15-513-20- 613-25-788-32-820 in the N. C. Jindal Public School, Punjabi Bagh. ./ New Delhi (hereinafter referred to as 'the School') vide Memorandum dated July 26, 1972 to teach the subject of Commerce to 9th and 10th H classes. The terms and conditions governing the appointment inter alia provided that the services of respondent No. 2 were 'liable to be tenninated with one month's notice on either side or a month's salary in lieu

of notlce without assigning any reason during the probation period and

three months thereafter' . Pursuant to the warning contained in the letters dated November 2, 1972, December 24, 1973, and August 4, 1975 of the Central Board of Secondary Education, New Delhi (hereinafter referred to as 'the Board'), to which the School is oaffiliated since ·

1971 that respondent No. 2 was not qualified to teach the subject of Commerce to higher secondary classes as per the minimum qualifications laid down by the Board, the Manager of the school served respondent No. 2 with three months' notice on August 8, 1975, informing him that his services would not be required by the School with effect from November 8, 1975. On September 8, 1975, the Man11:ger of the School gave another notice to respondent No. 2 enclosing therewith a cheque for Rs. 1300 /- (drawn on Syndicate Bank, Punjabi Bagh, Delhi} by way of the latter's salary for two months i.e. from September 8, 1975 to November 7, 1975 in lieu of the remaining) period of two months of the aforesaid notice dated August 8, 1975 and relieved him of his dutles with effect from the afternoon of that date.

Aggrieved by these notices, respondent No. 2 filed the aforesaid appeal before the Tribunal asserting inter alia that after the expiry of the probationary period of two years, he was confirmed by the School auth_orities in the post of Commerce Teacher in July, 1974; that despite sincere and hard work put in by him, his srvices were terminated on the basis of false and baseless charges because of .the personal grudge/, malice which the Principal of the School bore towards him; Th:it the plea of the School authorities that he was not academically qualified was incorrect; that the Manager and the Principal who were fully cognizant of clause 18 of Chapter 4 of the Central Board of Secondary Education Hand Book having issued the letter of appointment and subsequently that of confirmation, were estopped from pleading that he (respondent No. 2) was not qualified to teach the higher cla•ses:

that the said clause could at the most be construed to imply that he was not qualified to teach higher classes but the same could not be made a ground for terrniuating his services and that iifler completion of three years of teaching experience in the School, the disqualification. if any had disappeared. It was further pleaded by respondent No. 2 that his services could not be terminated without the prior approval of the Director of Education as provided by sub-section (2) of section 8 of the Act and without following the provisions of the Act and the rules

made thereunder. On these pleas, respondent No. 2 so)lght annulment of the aforesaid notices dated August 8, 1975 and September 8. 1975 and a declaration that he continued to be; in the service of the School.

The Manager and the Principal of the School contested the appeal contendin.g inter a!iti that since the School was neither an aided one nor had been recognised by the appropriate authority, the Act and the rule,;

framd thereunder were not ~PPlicable to it and consequently the appeal was mcompetent and the Tnbunal hll<i no jurisdiction to entertain the .same; tat the .appeal was even otherwise incompetent as the impugned order td _not impose any of the nenalties of dismissal, removal or

reduho1;1 m ran~ on rsPondent No. 2 but was an order simpliciter of

ter~1!nahon of. his services and the conditions necessary for the annlicah1Jitv of section 8(3). of the Act under which it purported to have been filed were not sattSfied; and that in the circumstances of the case

the prior approval of the Director of Education for terminating the service of respondent No. 2 was not at all necessary. . The Manager and the Principal of the School further pleaded that although respondent No. 2 was appointed on probation for two years, no letfer of confirmation was issued to him; that the services of respondent No. 2 were tenni11ated as they were told _by means of the aforesaid letters by the Board to which the School was affiliated since 1971 that the respondent should be replaced by a qualified teacher because he did not possess tbe prescribed qualification to teach the subject of Commerce; that respondent No. 2 was paid a sum of Rs. 1300/- vide cheque No. 454889 dated September 8, 1975 as his salary for two months from September 8, 1975 to November 7, 1975 in lieu of the remaining period of the notice; and that they were obliged to dispense with the services of respondent No. 2 as despite the opportunity afforded to him by continuing him in service on temporary basis to enable him to get himself duly qualified, he did not care to do so. The allegations of ma/a {ides made by respondent No. 2 were also denied by the Manager and the Principal of the School. It was further contended by them that since the instant case was not governed by the Act and the rules framed thereunder, the question of obtaining the prior approval of the Director of Education did not arise.

On the appeal filed by respondent No. 2 being allowed by the Tribunal, the Principal and the Manager O!f the School filed a writ petition in the Delhi High Court challenging the Tribunal's order which was dismissed as withdrawn on February 24,

1977. Thereupon they approached this Court for special leave to appeal which was granted vide order dated August 25, 1977.

We have heard the learned counsel on both sides who have reiterated the contentions raised by the parties before the Tribunal.

Three points viz. ( 1) whether the School was a recognised private 'school on the relevant date; (2) whether the service of respondent No. 2 could not be terminated without the prior approval of the Director of Education and ( 3) whether the impugned order of termination of service of respondent No. 2 was appealable to -the Tribunal arise for determination in this case.

We shall deal with these points seriatim'.

Re. Point No. 1 : For determination of this point, which is crucial it is necessary to refer to section 2(t) of the Act which defines a "recognised school" as a school recognised by the appropriate authority.

The expression "appropriate authority" is defined in section 2 ( e) of the Act as under :-

"2. ( e) 'appropriate authority' means-

(i) in the case of a school recognised or to be recognised by an authority designated or sponsored by the Central Government, that authority;

(ii) in the case of a school recognised or to be recognised by the Delhi Admiµistration, the Administrator or any other officer authorised by him in this behalf;

(iii) in the case of a school recognised or to be recognised by the Municipal Corporation of Delhi, that Corporation;

_,__

(iv) in the case of any other school, the Administrator or any other officer authorised by him in this behalf."

From the above definitions, it is clear that no school can be treated :as a 'recognised school' nnless it is recognised or acknowledged by the "appropriate authority'.

In case of the School in question, it is the Administrator or the officer authorised by him who could accord recognition to it A perusal of letters dated April 6, 1976, February 1, 1977 and June 6, 1977 of the Directorate of Educatioii, New Delhi (at pages

90, 95 and 162 of the record) makes it clear beyond any shadow o~ doubt that the School was not recognised in terms of the Act till the end of April, 1977 and it was only with effect from May 1, 1977 i.e. long after the relevant date viz. August 8, 1975 that the approval or recognition was accorded to it vide Jetter No. F.22(15)Z-XI(B)- 1968/2003 dated June 6, 1977 of the Directorate of Education, Rajinder Nagar, New Delhi.

This position has been admitted even by respondent No. 2 in para 4 of the Supplementary Affidavit filed by him before this Court. Even according to para 2 of the said affidavit, the recognition of the School by the competent authority was not there on the relevant date.

The observations of the Tribunal in regard to the point under consideration appear to' be based on a misconception of the true legal position. It seems to think that since the nam~ of the School figured in the. list of the Higher Secondary and Middle Schools in the Union Territory of De!bi for 1974-75 prepared by the Statistical Branch Of the Directorate of Education of the Delhi Administration, the School must be treated as a 'recognised school'.

This is clearly a wrong assumption.

The fact that the name of the School finds a mention in the aforesaid list is not enough to clothe it with the status of a 'recognised school'. It appears to us that since the School was affiliated to the Board, the Delhi Administration caused its name to be included in the aforesaid list. The fact that the School is affiliated or attached to the Board is also of no consequence and cannot justify the concluiiion that the Sch_o?l _is a 'recognised chool'. There is a siicant difference between 'afl1liat10n' and 'recognition'.

Whereas 'affiliation', it may be noted, is meant to prepare and present the students for public examination, 'recognition' of a private school is for other purposes mentioned in the Act and it is only when the School ls recognised bv the 'appropriate authority' tha~ it becomes amenable to other provisions of the Act.

Again the fact that the School was in existence at the commencement of the Act cannot confer on it the status of a recoonised

school and make it subject to the provisions of the Act and the" rules made thereunder.

To clotbe it with that status it is essential that it should hav~ been a 'recognised private school' a; contemplated by the

ct.

Notm~ !ias, however, been brought to our notice to sho" that it_ was an ex1.stmg school' as defined in section 2(j) of the Act. In view of all this, we have no hesitation in holdino that the School was not a 'recognised private school' on the relevant d:te and was therefore not amenable to the provisions of the Act. ' '

Re. !'oint No. 2 : Sub-section (2) of section 8 of the Act ordains H that sq]J3ect. to an:i: rule that may be made in this, behalf no employee of a recogmsed pnvate school shall be dismissed, remov'ed or reduced

in rank nor shall his service be otherwise terminated. except with the prtor approval of the Director of Edncation. From this, it clearly follows that the prior approval of the Director of Education is required only if the service of an employee of a recognised private school is to be terminated. As in the instant case, the School was not a recognised private school, the approval of the Director of Edncation was not at all necessary to make the order of termination of service of respondent, No. 2 valid and legal.

' Re. Point No. 3 : Under sub-section (3) of section 8 of the Act it is only an employee of a recognised private school against whom an order of dismissal, removal or rduction in rank is passed who is entitled to file an appeal against such order to the Tribunal constituted under section 11 of the Act within three months from the date of communication to him of the order. For the applicability of this provision of the Act, tw9 conditions must co-exist. These are ( 1) that the employee should be an employee of a recognised private school and (2) that he should be visited with either of the three major peiia1ties of dismissal, removal or reduction in rank. . As the School was neither a recognised private school on the relevant date nor was tbe impugned order one of dismissal, removal or reduction in rank but was an order simpliciter of termination of service. the aforesaid appeal filed by respondent No. 2 to the Tribunal constituted under section 11 of the Act was manifestly incompetent and the order passed therein by the Tribunal was clearly without jurisdiction.

For the foregoing reasons, we allow the appeal and quash the order E of the Tribunal. In the circumstances of the case, there will be no order as to costs.

S.R.

Appeal allowed.

,,1·