GAJANAND SHARMA versus AADARSH SIKSHA PARISHAD SAMITI & ORS.

[2023] 1 S.C.R. 949

GAJANAND SHARMA

AADARSH SIKSHA PARISHAD SAMITI & ORS.

Civil Appeal Nos.. 100-101 of 2023

JANUARY 19, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Rajasthan Non-Governmental Educational Institutions Act,1989 – s.18 – For termination from service, the approval of Directorof Education required or not – Appellant-employee was terminatedafter departmental enquiry – Tribunal set aside the order oftermination by observing and holding that the prior approval ofthe Director of Education as mandatory u/s. 18 of the Act, 1989was not obtained – Single Judge confirmed the order passed by theTribunal – Division Bench of the High Court allowed the writ appealand has set aside the orders passed by the Tribunal as well as theSingle Judge and has upheld the order of termination – DivisionBench observed that in case of termination after the disciplinaryenquiry/proceedings prior approval of the Director of Education isnot required – On appeal, held: On true interpretation of Section18 of the Act, 1989, it is specifically observed and held that even incase of termination/removal of an employee of recognizedinstitution after holding departmental enquiry/proceedings priorapproval of the Director of Education has to be obtained as perfirst proviso to s.18 of the Act, 1989 – The impugned judgment andorder passed by the Division Bench of the High Court restoring theorder of termination which as such was without obtaining the priorapproval of the Director of Education is set aside – The order ofTribunal setting aside the order of termination confirmed by theSingle Judge of the High Court is restored.

Allowing the appeals, the Court

HELD: 1. The decision of this Court in the case of RajKumar was binding upon the High Court. Therefore, the DivisionBench of the High Court has seriously erred in not following thedecision of this Court in the case of Raj Kumar. [Para 5.1][957-B]

A2. Even on fair reading of Section 18 of the Act, 1989, thisCourt is of the opinion that in case of termination of an employeeof recognized institution prior approval of the Director ofEducation or an officer authorised by him in this behalf has to beobtained. In Section 18, there is no distinction between thetermination, removal, or reduction in rank after the disciplinaryBproceedings/enquiry or even without disciplinary proceedings/enquiry. As per the settled position of law the provisions of thestatute are to be read as they are. Nothing to be added and ortaken away. The words used are “no employee of recognizedinstitution shall be removed without holding any enquiry and itCfurther provides that no final order in this regard shall be passedunless prior approval of the Director of Education has beenobtained.” The first part of Section 18 is to be read along withfirst proviso. Under the circumstances, taking contrary viewthat in case of dismissal/removal of an employee of recognizedinstitution which is after holding the departmental enquiry theDprior approval of the Director of Education is not required isunsustainable and to that extent the judgment of the LargerBench of the Rajasthan High Court in the case of Central AcademySociety is not good law. [Para 5.5][959-B-E]

3. Therefore, on true interpretation of Section 18 of theEAct, 1989, it is specifically observed and held that even in caseof termination/removal of an employee of recognized institutionafter holding departmental enquiry/proceedings prior approvalof the Director of Education has to be obtained as per first provisoto Section 18 of the Act, 1989. [Para 5.6][959-E-F]F

4. In view of the above and for the reasons statedhereinabove, the impugned judgment and order passed by theDivision Bench of the High Court restoring the order oftermination which as such was without obtaining the priorapproval of the Director of Education deserves to be quashedGand set aside and is accordingly quashed and set aside. The orderof Tribunal setting aside the order of termination confirmed bythe Single Judge is hereby restored. Consequently, the appellantshall have to be reinstated in service and considering the factthat the respondent(s) is/are un-aided institution and the orderof termination was passed as far as back in the year 1998, thisH

Court directs that the appellant shall be entitled to 50% of theback wages, however, he shall be entitled to all other benefitsnotionally including the seniority etc., if any. [Para 6][959-F-H;960-A]

Raj Kumar vs. Director of Education and Ors. (2016) 6SCC 541 : [2016] 1 SCR 697 – relied on.

Central Academy Society vs. Rajasthan Non-Govt.Educational Institutional Tribunal (2010) 3 WLC 21 –held not good law.

T.M.A. Pai Foundation vs. State of Karnataka (2002) 8SCC 481 : [2002] 3 Supp. SCR 587;Marwari BalikaVidyalaya vs. Asha srivastava (2020) 14 SCC 449 :[2019] 2 SCR 722; Mangal Sain Jain vs. PrincipalBalvantray Mehta Vidya Bhawan & Ors.[W.P. (C) No.3415/2020 decided by the Delhi High Court] –referred to.

Mangal Sain Jain v. Principal Balvantray Mehta VidyaBhawan & Ors.[W.P. (C) No. 3415/2020 decided bythe Delhi High Court] – referred to.

Case Law Reference

[2016] 1 SCR 697relied onPara 2.1, 5.1, 5.2, 5.4[2002] 3 Supp. SCR 587referred toPara 2.1, 5.1, 5.4[2019] 2 SCR 722referred toPara 5.4

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.100-101 of 2023.

From the Judgment and Order dated 06.05.2022 of the High Courtof Judicature for Rajasthan, Bench at Jaipur in D.B. Special AppealWrit No.1077 of 2005 and D.B. Special Appeal Writ No.826 of 2011.

Pradeep Aggarwal, Lal Pratap Singh, Umesh Pratap Singh, ArjunAggarwal, Bhaskar Aditya,Vishal Singh, Ms. Ruchi Kohli, Advs. for theAppellant.

Nikhil Singhvi, Ms. Shraddha Deshmukh, Bilal Ikram, ShikharKishore, Advs. for the Respondents.

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 06.05.2022 passed by the High Court of Judicature forRajasthan Bench at Jaipur in D.B. Special Appeal Writ Nos. 1077/2005B(filed by the management) and 826/2011 (filed by the employee), bywhich the Division Bench of the High Court has allowed the appealpreferred by the respondent(s) herein – management and has quashedand set aside the judgement and order passed by the learned SingleJudge and the order passed by the learned Tribunal quashing and settingCaside the order of termination dated 06.08.1998 and consequently upheldthe same, the employee has preferred the present appeals.2. The facts leading to the present appeals in nutshell are asunder: -2.1 That the appellant herein – employee was serving withDrespondent Nos. 1 and 2. disciplinary enquiry was initiated against himunder provisions of the Rajasthan Non-Governmental EducationalInstitutions Act, 1989 (hereinafter referred to as the Act, 1989). Thatthereafter on conclusion of the departmental enquiry services of theappellant came to be terminated which was the subject matter of challengebefore the learned Tribunal. The Tribunal set aside the order of terminationEby observing and holding that the prior approval of the Director ofEducation as mandatory under Section 18 of the Act, 1989 was notobtained. The learned Single Judge confirmed the order passed by thelearned Tribunal. By the impugned judgment and order and despite thefact that the decision of this Court in the case of Raj Kumar Vs. DirectorFof Education and Ors., (2016) 6 SCC 541 dealt with the pari materiaprovisions of the Delhi School Education Act (hereinafter referred to asthe DSE Act), taking the view that before termination of an employee,prior approval of the Director of Education is mandatory and required,the Division Bench of the High Court has not followed the decision ofGthis Court in the case of Raj Kumar (supra) by erroneously observingthat in the case of Raj Kumar (supra), this Court had not consideredthe earlier decision in the case of T.M.A. Pai Foundation Vs. State ofKarnataka; (2002) 8 SCC 481. That thereafter, after following thedecision of the Larger Bench of the High Court in the case of CentralAcademy Society Vs. Rajasthan Non-Govt. EducationalH

Institutional Tribunal; (2010) 3 WLC 21 reading down Section 18of the Act, 1989, observed that in case of termination after thedisciplinary enquiry/proceedings prior approval of the Director ofEducation is not required, the Division Bench of the High Court hasallowed the writ appeal and has set aside the orders passed by the learnedTribunal as well as the learned Single Judge and has upheld the order oftermination. That the impugned judgment and order passed by the HighCourt is the subject matter of one of the present appeals. At this stage,it is required to be noted that letters patent appeal (D.B. Special WritAppeal) No. 826/2011 was the subject matter of order dated 06.01.2011passed by the learned Single Judge denying the case of the appellant forequal pay for equal work. However, since the termination order came tobe upheld, thereafter, without further entering into the merits of the appeal,the Division Bench of the High Court has dismissed the said appeal,which is also the subject matter of one of the present appeals.

3. Now so far as the impugned judgment and order passed by theDivision Bench of the High Court upholding the order of termination andquashing and setting aside the orders passed by the learned Tribunal andthe learned Single Judge is concerned, it is vehemently submitted by thelearned counsel appearing on behalf of the appellant – employee that assuch the High Court has materially erred in not following the bindingdecision of this Court in the case of Raj Kumar (supra). It is submittedthat though not permissible, observing and holding that the decision ofthis Court in the case of Raj Kumar (supra), the Division Bench of theHigh Court has not followed the decision in the case of Raj Kumar(supra) on the ground that in the case of Raj Kumar (supra), this Courthad not considered the decision in the case of T.M.A. Pai Foundation(supra). It is submitted that the aforesaid is factually incorrect. It issubmitted that as such while passing the judgment and order in the caseof Raj Kumar (supra) this Court had taken into consideration at least inmore than 8-9 paragraphs the decision of this Court in the case of T.M.A.Pai Foundation (supra) (paragraphs 13, 42, 43, 47, 50-52, 61 & 64). Itis submitted that therefore, the Division Bench of the High Court hasseriously erred in not following the binding decision of this Court in thecase of Raj Kumar (supra).3.1 It is further submitted by the learned counsel appearing onbehalf of the appellant that as such in the case of Raj Kumar (supra)while dealing with and considering the pari materia provisions of DSE

AAct, namely, Section 8 of the DSE Act, this Court has specifically observedand held that before terminating an employee even in case of non-aided institution, the prior approval of the Director of Education ismandatory. It is submitted by the learned counsel appearing on behalf ofthe appellant that while holding so this Court did consider the decision ofthis Court in the case of T.M.A. Pai Foundation (supra). It is submittedBthat therefore, the Division Bench of the High Court has materially erredin taking the contrary view than the decision of this Court in the case ofRaj Kumar (supra) and the Division Bench of the High Court hasmaterially erred in relying upon the Larger Bench’s judgment/decision inthe case of Central Academy Society (supra) and taking the view thatCin case of termination followed by the disciplinary proceedings/enquiry,Section 18 requiring the prior approval of the Director of Education shallnot be applicable.

3.2 It is submitted that even in the case of Marwari BalikaVidyalaya Vs. Asha Srivastava; (2020) 14 SCC 449 after followingDthe decision of this Court in the case of Raj Kumar (supra), it is observedand held that before terminating/dismissing an employee, the prior approvalof the Direction of Education is required/mandatory.

3.3 It is further submitted by the learned counsel appearing onbehalf of the appellant that the decision in the case of Raj Kumar (supra)Ehas been subsequently followed by the Delhi High Court in the case ofMangal Sain Jain Vs. Principal Balvantray Mehta Vidya Bhawan& Ors. [W.P. (C) No. 3415/2020] against which the Special LeavePetition filed by the management has been dismissed by this Court in thecase of Principal Balvantray Mehta Vidya Bhawan Vs. Mangal Jainvide order dated 11.01.2021. Therefore, it is submitted that the DivisionFBench of the High Court has materially erred in restoring the order oftermination by observing that in case of non- aided institution and in acase where the termination is after the disciplinary enquiry/proceedings,the prior approval of the Director of Education is not mandatory.

3.4 Making the above submissions and relying upon the decisionGof this Court in the case of Raj Kumar (supra), it is prayed to allow thepresent appeals.

4. Present appeals are vehemently opposed by the learned counselappearing on behalf of the management - respondent(s).

4.1 It is vehemently submitted by the learned counsel appearingon behalf of the management that as such the decision of this Court inthe case of Raj Kumar (supra) and T.M.A. Pai Foundation (supra)shall not be applicable to the facts of the case on hand as in the aforesaiddecisions, it was case of termination without holding any disciplinaryenquiry/departmental proceedings. In the case of Raj Kumar (supra)this Court was considering Section 8 of the DSE Act. It is submitted thatin the present case as such the order of termination was passed afterfollowing departmental enquiry and after all the charges and themisconduct held to be proved. It is submitted that therefore first part ofSection 18 of the Act, 1989 shall not be applicable.

4.2 Learned counsel appearing on behalf of the management hasheavily relied upon Larger Bench decision of Rajasthan High Court inthe case of Central Academy Society (supra). It is submitted that theLarger Bench of the High Court has dealt with and/or considered thevery provision, namely, Section 18 of the Act, 1989 and has read downthe same after considering the decision in the case of T.M.A. PaiFoundation (supra) and has observed and held that in case of terminationof an employee after departmental enquiry/proceedings, Section 18 ofthe Act, 1989 shall not be applicable and the prior approval of the Directorof Education is not required.4.3 It is further submitted that even otherwise in the present case,the order of termination is not required to be set aside on the ground thatthe prior approval of the Director of Education was not obtained as thedisciplinary committee was consisted of District Education Officer. It issubmitted that the Committee, of which nominee of the DistrictEducation Officer was member, held all the charges and the misconductalleged proved. It is submitted that the charges and the misconduct provedagainst the appellant were very serious of abusing, misbehaving, andthreatening the school Principal, embezzlement of school funds and beingnegligent in handling school property. It is submitted that therefore, whenin the disciplinary committee nominee of the District Education Officerwas member, the order of termination without even the prior approval ofthe Director of Education is not required to be set aside.

4.4 Making the above submissions, it is prayed to dismiss thepresent appeals.

5. At the outset, it is required to be noted that and it is an admittedposition that parties are governed by the Rajasthan Non-Governmental

AEducational Institutions Act, 1989. Section 18 provides that no employeeof recognized institution shall be removed, dismissed, or reduced inrank unless he has been given by the management reasonableopportunity of being heard against the action proposed to be taken andthat no final order in this regard shall be passed unless prior approval ofthe Director of Education or an officer authorized by him in this behalfBhas been obtained. The learned Tribunal set aside the order of terminationon non-compliance of Section 18 of the Act, 1989 inasmuch as beforeterminating the services of the appellant – employee prior approval ofthe Director of Education was not obtained. The same came to beconfirmed by the learned Single Judge, however, by the impugnedCjudgment and order taking contrary view, the Division Bench of theHigh Court has allowed the appeal and has restored the order oftermination.

5.1 From the impugned judgment and order passed by the HighCourt, it appears that before the High Court the decision of this Court inDthe case of Raj Kumar (supra) taking contrary view and taking theview that before terminating the services of an employee of recognizedinstitution prior approval of the Director of Education is required waspressed into service. However, though impermissible the Division Benchof the High Court has not followed the said binding decision by observingthat in the case of Raj Kumar (supra), this Court had not consideredEthe decision of this Court in the case of T.M.A. Pai Foundation (supra).Apart from the fact that the same is wholly impermissible for the HighCourt even the said observations are factually incorrect. If the decisionin the case of Raj Kumar (supra) is seen in more than 8-9 paragraphs,this Court had referred to and as such dealt with the decision of thisFCourt in the case of T.M.A. Pai Foundation (supra). Even the decisionin the case of T.M.A. Pai Foundation (supra) was explained andconsidered by this Court in the case of Raj Kumar (supra). Therefore,the Division Bench of the High Court is factually incorrect in observingthat while deciding the decision in the case of Raj Kumar (supra) thisCourt had not considered the decision of this Court in the case of T.M.A.GPai Foundation (supra). Before commenting upon the decision of thisCourt in the case of Raj Kumar (supra) the Division Bench of the HighCourt ought to have thoroughly read and/or considered the decision inthe case of Raj Kumar (supra). Even after making the incorrectobservations that in the case of Raj Kumar (supra) this Court had notconsidered the decision of this Court in the case of T.M.A. PaiHFoundation (supra) the Division Bench of the High Court has consideredfew decisions of judicial discipline which were not applicable at all. Judicialdiscipline also requires that the judgment/decision of this Court shouldbe considered and read thoroughly. As observed hereinabove, the decisionof this Court in the case of Raj Kumar (supra) was binding upon theHigh Court. Therefore, the Division Bench of the High Court has seriouslyerred in not following the decision of this Court in the case of Raj Kumar(supra).

5.2 Now so far as the decision of this Court in the case of RajKumar (supra) is concerned, this Court was considering pari materiaprovisions under the DSE Act. This Court was considering Section 8 ofthe DSE Act, which reads as under:-

“8. (2) Subject to any rule that may be made in this behalf, noemployee of recognised private school shall be dismissed,removed or reduced in rank nor shall his service be otherwiseterminated except with the prior approval of the Director.”

5.3 Similar is the provision so far as Section 18 of the Act, 1989 isconcerned which reads as under: -

“18. Removal, dismissal or reduction in rank of employees.-Subject to any rules that may be made in this behalf, noemployee of recognised institution shall be removed, dismissedor reduced in rank unless he has been given by the managementa reasonable opportunity of being heard against the actionproposed to be taken; Provided that no final order in this regardshall be passed unless prior approval of the Director ofEducation or an officer authorised by him in this behalf hasbeen obtained.”

5.4 In the case of Raj Kumar (supra) while dealing with the parimateria provision under the DSE Act and after considering the decisionof this Court in the case of T.M.A. Pai Foundation (supra), it isspecifically observed and held by this Court that in case of recognizedinstitution, before terminating the services of an employee, prior approvalof the Director of Education is required. Therefore, contrary viewtaken by the Larger Bench of the High Court relied upon by the DivisionBench of the High Court is not good law. It is required to be noted thatthe decision of this Court in the case of Raj Kumar (supra) has beenconsidered by this Court in the case of Marwari Balika Vidyalaya (supra)

Aand also by the Delhi High Court in the case of Mangal Sain Jain(supra). In the case of Marwari Balika Vidyalaya (supra) this Courtconsidered the decision in the case of Raj Kumar (supra) and objectand purpose of Section 8 of DSE Act in paragraphs 13 and 14 as under:-

“13. In Raj Kumar v. Director of Education [Raj Kumar v.BDirector of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S)111] this Court held that Section 8(2) of the Delhi School EducationAct, 1973 is procedural safeguard in favour of employee toensure that order of termination or dismissal is not passed withoutprior approval of Director of Education to avoid arbitrary orCunreasonable termination/dismissal of employee of evenrecognised private school. Moreover, this Court also consideredthe Objects and Reasons of the Delhi School Education Act, 1973and came to the conclusion that the termination of service of thedriver of private school without obtaining prior approval ofDirector of Education was bad in law. This Court observed : (SCCDp. 560, para 45)

“45. We are unable to agree with the contention advanced bythe learned counsel appearing on behalf of the respondentschool. Section 8(2) of the DSE Act is procedural safeguardin favour of an employee to ensure that order of termination ordismissal is not passed without the prior approval of the Directorof Education. This is to avoid arbitrary or unreasonabletermination or dismissal of an employee of recognised privateschool.”

14. This Court has laid down in Raj Kumar v. Director ofEducation [Raj Kumar v. Director of Education, (2016) 6 SCC541 : (2016) 2 SCC (L&S) 111] that the intent of the legislaturewhile enacting the Delhi School Education Act, 1973 (in short“the DSE Act”) was to provide security of tenure to the employeesof the school and to regulate the terms and conditions of theiremployment. While the functioning of both aided and unaidededucational institutions must be free from unnecessarygovernmental interference, the same needs to the reconciled withthe conditions of employment of the employees of these institutionsand provision of adequate precautions to safeguard their interests.Section 8(2) of the DSE Act is one such precautionary safeguard

which needs to be followed to ensure that employees of educationalinstitutions do not suffer unfair treatment at the hands of themanagement.”

5.5 Even on fair reading of Section 18 of the Act, 1989, we are ofthe opinion that in case of termination of an employee of recognizedinstitution prior approval of the Director of Education or an officerauthorised by him in this behalf has to be obtained. In Section 18, thereis no distinction between the termination, removal, or reduction in rankafter the disciplinary proceedings/enquiry or even without disciplinaryproceedings/enquiry. As per the settled position of law the provisions ofthe statute are to be read as they are. Nothing to be added and or takenaway. The words used are “no employee of recognized institution shallbe removed without holding any enquiry and it further provides that nofinal order in this regard shall be passed unless prior approval of theDirector of Education has been obtained.” The first part of Section 18 isto be read along with first proviso. Under the circumstances, taking acontrary view that in case of dismissal/removal of an employee of arecognized institution which is after holding the departmental enquirythe prior approval of the Director of Education is not required isunsustainable and to that extent the judgment of the Larger Bench ofthe Rajasthan High Court in the case of Central Academy Society(supra) is not good law.

5.6 Therefore, on true interpretation of Section 18 of the Act,1989, it is specifically observed and held that even in case of termination/removal of an employee of recognized institution after holdingdepartmental enquiry/proceedings prior approval of the Director ofEducation has to be obtained as per first proviso to Section 18 of theAct, 1989.

6. In view of the above and for the reasons stated hereinabove,the impugned judgment and order passed by the Division Bench of theHigh Court restoring the order of termination which as such was withoutobtaining the prior approval of the Director of Education deserves to bequashed and set aside and is accordingly quashed and set aside. Theorder of learned Tribunal setting aside the order of termination confirmedby the learned Single Judge is hereby restored. Consequently, theappellant shall have to be reinstated in service and considering the factthat the respondent(s) is/are un-aided institution and the order oftermination was passed as far as back in the year 1998, we direct that

Athe appellant shall be entitled to 50% of the back wages, however, heshall be entitled to all other benefits notionally including the seniorityetc., if any.

6.1 Civil appeal No. 100/2023 arising out of the impugned judgmentand order passed in D.B. Special Appeal Writ No. 1077/2005 is herebyBallowed according to the aforesaid extent.

6.2 Now so far as Civil Appeal No. 101/2023 arising out of theimpugned judgment and order passed in D.B. Special Appeal Writ No.826/2011 is concerned, the Division Bench of the High Court has not atall dealt with the said appeal on merits while upholding the order ofCtermination. Therefore, we set aside the order passed by the High Courtin D.B. Special Appeal Writ No. 826/2011 and remand the matter to theHigh Court to decide the same afresh in accordance with law and on itsown merits.

Both the appeals are accordingly allowed to the aforesaid extentand in terms of the above. In the facts and circumstances of the caseDthere shall be no order as to costs.

Ankit Gyan

(Assisted by : Abhishek Pratap Singh, LCRA)

Appeals allowed.