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PETITIONER: PRINCIPAL AND ORS.

       Vs.

RESPONDENT: PRESIDING OFFICER AND ORS.

DATE OF JUDGMENT09/01/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT FAZALALI, SYED MURTAZA

CITATION:  1978 AIR  344            1978 SCR  (2) 507  1978 SCC  (1) 498

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

HEADNOTE: Respondent  No. 2 who is an M.Com., but does not  possess  a Training  Degree  or a recognised Diploma  in  Education  or three  years’ experience of teaching intermediate or  higher classes or a recognised training certificate, 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  and 10th classes, 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 during the probation period, and  three  months’ thereafter.  Pursuant to the warning contained in, e letters dated November 2, 1972, December 24, 1973 and August 4, 1975 of  the Central Board of Secondary Education, New  Delhi  to which 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  August S,  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, vide its another notice to Respondent No. 2 enclosing therewith a cheque for Rs. 1300/- by way of his salary for two months from 8-9-1975 to 7-11-75 in lieu of the remaining period of two months, relieved  him of  his duties with effect from the afternoon of that  date. Aggrieved by these notices, Respondent 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  asserting, inter alia, that after the expiry of the probationary period of two years, he was 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  basis of  false  and  baseless  charges because of personal malice which the principal of the school bore  towards  him;  that the- plea that  he  was  not  aca- demically qualified was incorrect, that the management which was fully cognizant of the requirements of the rules, having issued  the letter of. appointment and subsequently that  of

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confirmation  was  estopped from pleading that  he  was  not qualified to teach the higher classes, that after completion of  three  years of teaching experience in  the  school  the disqualification, if any having disappeared the said  clause could not be made a ground for terminating his services, and 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. The  appellants contested the appeal contending inter  alia, that since the school was neither an aided one nor had  been recognised  by  the appropriate authority, the Act  and  the rules  framed  thereunder  were not applicable  to  it,  and consequently the appeal was incompetent and the Tribunal had no  jurisdiction to entertain the same; that the appeal  was even  otherwise  incompetent as the impugned  order  was  an order  simpliciter  of  termination  of  his  services   not satisfying  the conditions necessary for the application  of s.8(3) and that in the circumstances of the case the  ’prior approval  of the Director of Education for  terminating  the services  was not at all necessary.  The  Management  denied the other allegations made by respondent No. 2. The Tribunal allowed the appeal. Allowing the appeal by special leave the Court, HELD : 1. From sub-clauses (e) and (t) of s. 2 of the  Delhi Schools  Education  Act, 1973, which  define  a  "recognised school" and an "appropriate authority" 7--1146SCI/77 508 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 lending  a place in the list of Higher Secondary and  middle schools  prepared  by  the  Directorate  of  Education,  its affiliation  to  the Board or even its  existence ,it  the commencement of the Act can not clothe it with the status of a. recogninsed  school.  In the instant case, the school was 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 3.2(j) of the Act. [510 H, 511 A, E-G] 2.Prior approval of the Director of Education is required u/s 8(2) 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 Education was not at all  necessary  to make the order of termination of service of respondent No. 2 valid and legal. [512 A-B] 3.For  the  applicability  of  S.8(3)  of  the  Act,  two conditions  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.  In 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 simpliciter  of  termination of service,  the  appeal  filed before  the  Tribunal  constituted u/s 11  of  the  Act  was manifestly  incompetent and the order passed thereon by  the Tribunal was clearly without jurisdiction. [512 C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1804  of

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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  Tribunal,  Delhi  (hereinafter referred  to  as  the Tribunal)  in Appeal No. 22 of 1975 purporting to have  been preferred  under sub-section(3) of section 8 of  the,  Delhi School Education Act, 1973 (hereinafter referred to as  ’the Act) by Kunj Behari Lal, respondent No. 2 herein. It appears that respondent No. 2 who is an M. Corn. but does not  possess  a Training Degree or a recognised  Diploma  in Education   or   three   years’   experience   of   teaching intermediate  or  higher classes or  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 classes.  The terms and  conditions governing  the  appointment  inter alia  provided  that  the services  of respondent No. 2 were ’liable to be  terminated with  one month’s notice on either side or a month s  salary in lieu 5 09 of notice 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 affiliated 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 Manager 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 latters 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  duties  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 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  basis  of false and baseless charges  because  of  ,the personal  grudge/, malice which the Principal of the  School bore  towards him; that 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 classes; that the said clause could at  the

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most  be  construed to imply that be was  not  qualified  to teach higher classes but the same could not be made a ground for  terminating his services and that after  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 sought  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  con- tending  inter  alia that since the School  was  neither  an aided  one  nor  bad  been  recognised  by  the  appropriate authority,  the Act and the rule,-, framed  thereunder  were not  applicable  to  it  and  consequently  the  appeal  was incompetent   and  the  Tribunal  had  no  jurisdiction   to entertain  the  same;  that the appeal  was  even  otherwise incompetent as the impugned order did not impose any of  the penalties  of  dismissal, removal or reduction  in  rank  on respondent No. 2 but was an order simpliciter of termination of his services and the conditions necessary for the  appli- cabilty of section 8(3) of the Act under which it  purported to  have  been  filed were not satisfied; and  that  in  the circumstances of the case 510 the  prior  approval  of  the  Director  of  Education   for terminating the service of respondent No. 2 was not ;it  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 letter of  confirmation  was issued  to him; that the services of respondent No.  2  were terminated  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 the  prescribed qualification to teach the subject of Commerce; that respon- dent  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 mala fides 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  of  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

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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  Administration,               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;               511               (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 unless it is  recognised or acknowledged by the ,appropriate authority’.  In case  of the  School in question-, it is the A 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 Education,  New Delhi (at pages 90, 95 and 162 of the record) makes it clear beyond  any  shadow  of  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 letter  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 part  4  of  the Supplementary  Affidavit  filed by him  before  this  Court. Even  according to para 2 of the said affidavit, the  recog- nition  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 name of the School figured in  the list of the Higher Secondary and Middle  Schools  in the  Union  Territory of Delhi 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  conclusion that  the  School  is a ’recognised  school’.   There  is  a significant    difference    between    ’affliation’     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

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purposes mentioned in the Act and it is only when the School is  recognised  by  the "  appropriate  authority’  that  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  recognised school and make it subject to the provisions of the Act  and the  rules made thereunder.  To clothe it with that  status, it  is  essential  that it should have  been  a  ’recognised private  school’ as contemplated by the Act.   Nothing  has, however, been brought to our notice to show- that it was  an ’existing school’ as defined in section 2(1) of the Act.  In view of all this, we have no hesitation in holding that  the School was not a ’recognised private, school on the relevant date and was-, therefore, ’not an-,enable to the  provisions of the Act. Re.   Point No. 2 : Sub-section (2) of section 8 of the  Act ordains  that subject to any rule that may be made  in  this behalf, no employee ,of a recognised private school shall be dismissed, removed or reduced 512 in rank nor shall his service be otherwise terminated except with the prior approval of the Director of Education.   From this,  it  clearly follows that the prior  approval  of  the Director of Education is required only it 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  Education 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 reduction  in rank  is  passed who is entitled to file an  appeal  against such order to the rribunal constituted under section 1 1  of the  Act within three months from the date of  communication to  him  of the order.  For the applicability or  this  Pro- vision of the Act, two 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 penalties of dismissal, removal or reduction  in rank.  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  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  of the Tribunal.  In the circumstances of  the  case, there will be no order as to costs. S.R. Appeal allowed. 5 13